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Yup, John Brennan Rolled DiFi on the Torture Report

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Brennan with TortureThe 15th paragraph of this story on CIA’s continuing efforts to water down the Senate Intelligence Committee’s torture report reads,

The CIA’s current director, John Brennan, was a senior agency official when the harshest CIA tactics were in use. Officials said that in closed-door meetings with Congress, he complained the Senate report contained major inaccuracies.

It is utterly predictable that Brennan, who refused to read the report before he got confirmed, would, after he was confirmed, decide it was inaccurate. See here, here, here, here, here, here, and here for just some of the bread crumbs this would happen.

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.

 

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Sy Hersh Writing about Politicized Intelligence Again, Syria Edition

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Sy Hersh has a long piece in the London Review of Books accusing the Obama Administration of cherry-picking intelligence to present its case that Bashar al-Assad launched the chemical weapons attack on August 21.

To be clear, Hersh does not say that Assad did not launch the attack. Nor does he say al-Nusra carried out the attack. Rather, he shows that:

  • At some unidentified time since the beginning of the Civil War, Assad had discovered and neutralized wiretaps on his inner circle, leaving US intelligence blind to discussions happening among his top aides
  • Sensors planted to detect any movement of Assad’s CW immediately had not been triggered by the August 21 attack
  • By June, some intelligence entity had concluded that an Iraqi member of al-Nusra had the capability to manufacture sarin in quantity

A lot of the story serves to establish that two days after the attack, the US had yet to respond to it, presumably because it did not have any intelligence Syria had launched the attack, in part because nothing had triggered the sensors that had worked in the past. To develop its intelligence on the attack days afterwards, the NSA performed key word searches on already-collected radio communications of lower level Syrian military figures.

‘There are literally thousands of tactical radio frequencies used by field units in Syria for mundane routine communications,’ he said, ‘and it would take a huge number of NSA cryptological technicians to listen in – and the useful return would be zilch.’ But the ‘chatter’ is routinely stored on computers. Once the scale of events on 21 August was understood, the NSA mounted a comprehensive effort to search for any links to the attack, sorting through the full archive of stored communications. A keyword or two would be selected and a filter would be employed to find relevant conversations. ‘What happened here is that the NSA intelligence weenies started with an event – the use of sarin – and reached to find chatter that might relate,’ the former official said. ‘This does not lead to a high confidence assessment, unless you start with high confidence that Bashar Assad ordered it, and began looking for anything that supports that belief.’ The cherry-picking was similar to the process used to justify the Iraq war.

Ultimately, according to one of Hersh’s sources, they used intelligence collected in response to last December’s Syrian exercise on CW as the basis for what the Syrians would have been doing in case of an attack.

The former senior intelligence official explained that the hunt for relevant chatter went back to the exercise detected the previous December, in which, as Obama later said to the public, the Syrian army mobilised chemical weapons personnel and distributed gas masks to its troops. The White House’s government assessment and Obama’s speech were not descriptions of the specific events leading up to the 21 August attack, but an account of the sequence the Syrian military would have followed for any chemical attack. ‘They put together a back story,’ the former official said, ‘and there are lots of different pieces and parts. The template they used was the template that goes back to December.’

The White House presented this cherry-picked intelligence 9 days after the attack to a group of uncritical journalists (Hersh notes Jonathan Landay was excluded).

That’s the damning part of Hersh’s story on the intelligence used to support the Syrian warmongering (it is largely consistent with observations made at the time).

Hersh also describes how the NYT ignored the conclusions of MIT professor Theodore Postol, who determined at least some of the shells used in the attack were locally manufactured and had a much shorter range than publicly described.

Ultimately, though, Hersh’s biggest piece of news describes how someone — he doesn’t say who, but this part of his story relies on a senior intelligence consultant of unidentified nationality — sent Deputy DIA Director David Shedd a report on June 20 concluding that a former Iraqi CW expert with the capability of manufacturing sarin was operating in Eastern Ghouta.

An intelligence document issued in mid-summer dealt extensively with Ziyaad Tariq Ahmed, a chemical weapons expert formerly of the Iraqi military, who was said to have moved into Syria and to be operating in Eastern Ghouta. Read more →

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Khan’s Protests Succeed: US Halts Use of Northern Supply Route Through Pakistan

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Recall that two weeks ago, John Brennan launched a drone strike in a settled area of Pakistan (rather than the remote tribal areas where most strikes take place) in the very province ruled by drone critic Imran Khan’s PTI party. Last week, Khan retaliated, with his party behind an attempt to break the cover of the CIA station chief in Islamabad. Khan also launched massive demonstrations aimed at disrupting the NATO supply route that runs through Khyber Pakhtunkhwa. Yesterday, the Pentagon announced that use of that route for removal of equipment from Afghanistan is being halted until it once again becomes safe for the drivers of the trucks.

Reuters was first to bring news of the interruption:

The affected route, which runs from Torkham Gate at the Afghanistan-Pakistan border to the Pakistani port city of Karachi, has been crucial for the United States as it winds down its combat mission in landlocked Afghanistan and moves equipment out of the country.

The route accounts for the vast majority of ground traffic of U.S. military cargo through Pakistan and has been targeted by protesters in Pakistan angered by U.S. drone strikes.

“We are aware protests have affected one of the primary commercial transit routes between Pakistan and Afghanistan,” Pentagon spokesman Mark Wright told Reuters.

“We have voluntarily halted U.S. shipments of retrograde cargo … to ensure the safety of the drivers contracted to move our equipment,” he added, referring to shipments going out of Afghanistan.

The article notes that an alternative land route that goes through Russia and central Asia is longer and more expensive. Although shipments of supplies, especially fuel, into Afghanistan are still needed to maintain troops in Afghanistan, Wright’s statement is strangely silent on whether supply shipments via the northern route in Pakistan also have been halted. Considering that PTI activists armed with clubs have been stopping trucks to inspect their cargo to see if it is related to the troops in Afghanistan, drivers of supply shipments should be just as much at risk as those bringing equipment out of the country.

Khan’s party was quick to claim victory today:

PTI spokeswoman Shireen Mazari hailed the Pentagon’s move as a “tactical success” and said the protests would continue.

“The US decision to halt Nato supplies through Torkham doesn’t affect our protest and we will continue our protest until drone strikes are stopped,” she told news agency AFP.

Khan demanded the government block Nato supplies after a US drone strike that killed Pakistani Taliban leader Hakimullah Mehsud but Islamabad has shown no appetite for such a move.

Believing that this interruption will be brief, the US has called for the transport trucks to wait in holding areas in Afghanistan. Will these holding areas be the sites of the next “tactical success” for opponents of US policy?

With regard to the equipment being shipped out of Afghanistan, note that I had already commented on the move by the US away from the MRAP and to purchase nearly a billion dollars’ worth of new armored vehicles for Afghan military forces. Although many vehicles are being shipped out of the country, many more are simply being destroyed in Afghanistan. If the disruption of the transport route becomes prolonged, look for even more vehicles to be destroyed rather than removed. That process may have already started, however. While traveling last weekend, I happened to overhear a conversation on an airplane in which one party claimed to have been on the ground in Kabul recently to witness brand new MRAP’s arriving by air transport only to be moved across the airport to a site where they were dismantled to be sold as scrap.

Update: Just a few minutes after this post went live, I saw a tweet from ISAFMedia linking to this statement:

While U.S. retrograde and NATO/ISAF cargo are not currently moving through the Torkham Gate in the interest of the safety of the drivers, shipments continue to move into – and out of – Afghanistan via alternate routes.

So it appears that supplies also are not being shipped into Afghanistan via the northern route through Pakistan, just as I had speculated. My guess is that Wright emphasized the retrograde shipments merely to make the point that the disruption could slow US withdrawal.

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Imran Khan’s PTI Party Retaliates for Drone Strike, Outs Islamabad CIA Station Chief

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Recall that back on November 21, John Brennan allowed the CIA to carry out a drone strike that hit a settled area of Pakistan rather than the tribal areas where most strikes occur. I noted that by striking within the province governed by former cricket star Imran Khan’s PTI party, Brennan was setting himself up for some significant blowback.

Today, less than one week after the drone strike, that blowback has hit hurricane force. From The Guardian:

The political party led by the former cricket star Imran Khan claims to have blown the cover of the CIA‘s most senior officer in Pakistan as part of an increasingly high-stakes campaign against US drone strikes.

The Pakistan Tehreek-e-Insaf (PTI) party named a man it claimed was head of the CIA station in Islamabad in a letter to police demanding he be nominated as one of the people responsible for a drone strike on 21 November, which killed five militants including senior commanders of the Haqqani Network.

John Brennan, the CIA director, was also nominated as an “accused person” for murder and “waging war against Pakistan”.

Recall that another station chief was outed in 2010, also in response to a drone strike. He left the country very quickly. If you insist on knowing the name that was revealed, this article mentions it, but the name strikes me as more of a cover name than a real name.

The document that names John Brennan and the Islamabad station chief is an FIR, or First Information Report. Here is how those reports work in Pakistan:

First Information Report (FIR) is a written document prepared by the police when they receive information about the commission of a cognizable offence. It is a report of information that reaches the police first in point of time and that is why it is called the First Information Report. It is generally a complaint lodged with the police by the victim of a cognizable offence or by someone on his/her behalf. Anyone can report the commission of a cognizable offence either orally or in writing to the police. Even a telephonic message can be treated as an FIR. It is a duty of police to register FIR without any delay or excuses. Non-registration of FIR is an offence and can be a ground for disciplinary action against the concerned police officer.

/snip/

A cognizable offence is one in which the police may arrest a person without warrant. They are authorized to start investigation into a cognizable case on their own and do not require any orders from the court to do so.

In the FIR, PTI officials are claiming that the station chief does not have diplomatic immunity and should be blocked from exiting the country. I wonder if John Kerry is going to have to make another surreptitious pick-up like the one he did when he spirited out of Pakistan the unidentified driver who killed a pedestrian on his failed mission to rescue Raymond Davis before his arrest in Lahore.

Khan’s party also has been attempting to shut down NATO supply vehicles passing through Khyber Pakhtunkhwa Province, but they have not been very successful in that regard. Returning to the Guardian article:

Khan responded with a massive rally in the provincial capital of Peshawar and ordered PTI activists to block vehicles carrying supplies to Nato troops in Afghanistan.

However, party workers have struggled to identify Nato cargo amid all the sealed containers plying the roads to Afghanistan. The exercise has received no support from the national government and the police have tried to stop PTI workers blocking lorries.

There also are reports of arrests for damaging shipping containers on trucks and attacking drivers.

Khan has clearly upped the stakes in his battle with Brennan. How will Brennan respond? At a bare minimum, more drone strikes in the province seem like a pretty safe bet.

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John Brennan: “Gone Native,” or Always Already Native?

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In a piece laying out how, rather than shift drone strikes to DOD (as much of the press credulously claimed John Brennan planned to do while he was still in the White House), the Executive will instead merge CIA and DOD operations more closely, Greg Miller includes this line.

One senior administration official said Brennan had “gone native” since moving into the director’s office on the CIA’s seventh floor.

Gone native! “The horror! The horror!”

To rebut that claim, some anonymous sources close to Mr. Kurt — um, I mean Mr. Brennan — suggest Brennan never intended to hand over all of the drone program to DOD.

U.S. officials close to Brennan disputed that characterization, saying he remains committed to the White House goal. But they acknowledged that there is still no timetable for reaching it, and that Brennan never envisioned a complete CIA withdrawal from the drone program.

When Brennan speaks of “traditional” military activities, he “is referring to the military conducting lethal ‘finishing’ operations, i.e. ‘dropping ordnance,’ ” the intelligence official said, meaning the agency would remain involved in tracking terrorist groups and identifying targets even if it ultimately surrenders its authority to execute strikes.

And in fact, those anonymous sources are correct, as anyone who actually read closely what Brennan said in his confirmation testimony would know. While a bunch of credulous reporters parroted what was surely the impression Brennan chose to create at the time — that he intended to take CIA out of the drone and paramilitary business — he always distinguished what he considered CIA’s well-established (think OSS) paramilitary role from “traditional military activities.”

And now we’re learning that by the latter — TMA — Mr. Kurtz only meant pressing the button.

What a surprise. To the DC press corps, but not to Emptywheel readers.

You see, the evidence suggests Brennan was always “native,” the entire time he was in the White House. Perhaps the Senior Administration Officials only now discovering he “went native” decades ago might reconsider the policies he convinced them to believe were their own?

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Where Is the Moral Rectitude When Political Retaliation Drone Strike Hits Settled Area, Misses Target?

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Early this morning, just hours after the US had assured Pakistan that drone strikes would be curtailed if Pakistan is able to restart peace talks with the Taliban (after the US disrupted them with a drone strike), John Brennan lashed out with one of his signature rage drone strikes that seems more calculated as political retaliation than careful targeting. Earlier documentation of political retaliation strikes can be seen here and here.

Here is how Dawn described the assurance from the US late on Wednesday:

The United States has promised that it will not carry out any drone strikes in Pakistan during any peace talks with Taliban militants in the future, the Prime Minister’s Special Advisor on Foreign Affairs Sartaj Aziz said Wednesday.

Briefing a session of the Senate’s Standing Committee on Foreign Affairs in Islamabad, Aziz said a team of government negotiators was prepared to hold talks with former Tehrik-i-Taliban Pakistan (TTP) chief Hakimullah Mehsud on Nov 2, the day after he was killed in a US drone strike in North Waziristan.

/snip/

Interior Minister Chaudhry Nisar Ali Khan had told reporters last week that the process of peace talks could not be taken forward unless drone attacks on Pakistani soil are halted.

Nisar had said that the drone attack that killed Mehsud ‘sabotaged’ the government’s efforts to strike peace with anti-state militants.

Bill Roggio, writing in Long War Journal, is convinced that the Haqqani network’s leader was the target of today’s strike:

The US launched a drone strike at a seminary in Pakistan’s settled district of Hangu, killing eight people in what appears to have been an attempt to kill Sirajuddin Haqqani, the operations commander of the Taliban and al Qaeda-linked Haqqani Network.

But see that bit about the strike being in “Pakistan’s settled district”? One of the many unwritten “rules” of US drone strikes in Pakistan is that they are restricted to the FATA, or Federally Administered Tribal Area, of Pakistan where Pakistani security or military personnel have little to no freedom of movement. In fact, the ability of drones to enter these otherwise forbidden territories is touted as one of their main justifications for use.

Just over a week ago, the chief fundraiser for the Haqqani network was killed near Islamabad. That killing involved a gunman, though, not a drone. If Nasiruddin Haqqani could be taken out by a gunman near Islamabad, why couldn’t Sirajuddin also have been taken out by a gunman in Hangu rather than missed in a drone strike?

Various reports on this drone strike place the death toll at anywhere from three to eight and say that either three or four missiles were fired into the seminary. The seminary appeared to be frequented by Haqqani network fighters. From the Express Tribune:

Another Haqqani source said the seminary was an important rest point for members fighting in Afghanistan’s restive Khost province.

“The seminary served as a base for the network where militants fighting across the border came to stay and rest, as the Haqqani seminaries in the tribal areas were targeted by drones,” the source told AFP on condition of anonymity.

An intelligence source told Reuters separately that Sirajuddin Haqqani, the leader of Taliban-linked Haqqani network, was spotted at the seminary two days earlier.

It appears that there have been no other drone strikes outside the tribal areas since March of 2009. Roggio notes that all three of the others were in the Bannu district.

Khyber Pakhtunkhwa province now is governed by former cricket star Imran Khan’s PTI party. Khan already was highly agitated by the drone killing of Hakimullah Mehsud and its impact on the planned peace talks with the TTP. It seems entirely possible that striking in Khan’s province was a deliberate act by Brennan in retaliation for Khan’s rhetoric after the Hakimullah Mehsud killing. But by striking out with such rage, and especially by missing his target in a strike in a highly populated area, Brennan seems to have set himself up for a huge blowback.  Khan is now ratcheting up his rhetoric considerably: Read more →

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The “Heroes” of the Hospital Confrontation Brief the FISC

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I’m going to have several posts on the documents released yesterday, starting with the Internet dragnet opinion and the phone dragnet application.

But to give those two background, I want to look at a passage in the Internet dragnet opinion, in which Colleen Kollar-Kotelly describes a fascinating briefing that she received in advance of authoring what Orin Kerr describes as a “quite strange” opinion.

After describing some declarations she received (including one from a person whose title remains redacted) and some questions she posed, she describes this briefing.

The Court also relies on information and arguments presented in a briefing to the Court on [redacted] which addressed the current and near-term threats posed by [redacted reference to Al Qaeda and others], investigations conducted by the Federal Bureau of investigation (FBI) to counter those threats, the proposed collection activities of the NSA (now described in the instant application), the expected analytical value of information so collected in efforts to identify and track operatives [redacted] and the legal bases for conducting these collection activities under FISA’s pen register/trap and trace provisions. 4

4 This briefing was attended by (among others) the Attorney General; [redacted] the DIRNSA; the Director of the FBI; the Counsel to the President; the Assistant Attorney General for the Office of Legal Counsel; the Director of the Terrorist Threat Integration Center (TTIC); and Counsel for Intelligence Policy.

That is, right at the beginning of her opinion, Kollar-Kotelly tells us that she had a briefing with:

  • AG John Ashcroft
  • [redacted]
  • DIRNSA Michael Hayden
  • FBI Director Robert Mueller
  • Counsel to the President Alberto Gonzales
  • AAG for OLC Jack Goldsmith
  • TTIC Director John Brennan
  • Counsel for OIPR James Baker

On page 30, Kollar-Kotelly seems to refer to the same redacted person again, which in the context of the reference to CIA v. Sims in that footnote, seems to suggest this is a reference to CIA Director George Tenet, which suggests the redacted author of the brief she relied on was authored by Tenet. (I leave open the more tantalizing possibility that it’s someone like Dick Cheney, but highly doubt it.)

So before she approved the use of FISA’s Pen Register to collect much of the Internet metadata in the US, she had a meeting with at least one of the villains — Alberto Gonzales — of the hospital confrontation at which DOJ refused to reauthorize the Internet metadata program that was part of the President’s illegal wiretap program, and at least three of its “heroes:” Ashcroft, Mueller, and Goldsmith.

Interestingly, this meeting does not appear — at least not described as such — in the Draft NSA IG Report description of the transition to a FISC order.

After extensive coordination, DoJ and NSA devised the PRITT theory to which the Chief Judge of the FISC seemed amenable. DoJ and NSA worked closely over the following months, exchanging drafts of the application, preparing declarations, and responding to questions from court advisers. NSA representatives explained the capabilities that were needed to recreate the Authority, and DoJ personnel devised a workable legal basis to meet those needs. In April 2004, NSA briefed Judge Kollar-Kotelly and a law clerk because Judge Kollar-Kotelly was researching the impact of using PSP-derived information in FISA applications. In May 2004, NSA personnel provided a technical briefmg on NSA collection of bulk Internet metadata to Judge Kollar-Kotelly. In addition, General Hayden said he met with Judge Kollar-Kotelly on two successive Saturdays during the summer of 2004 to discuss the on-going efforts.

Was this “briefing” one of the Saturday meetings Hayden had with FISC’s Presiding Judge?

Remember, David Kris described the genesis of the bulk collection programs this way, in a paper emphasizing the role of the Internet dragnet.

More broadly, it is important to consider the context in which the FISA Court initially approved the bulk collection. Unverified media reports (discussed above) state that bulk telephony metadata collection was occurring before May 2006; even if that is not the case, perhaps such collection could have occurred at that time based on voluntary cooperation from the telecommunications providers. If so, the practical question before the FISC in 2006 was not whether the collection should occur, but whether it should occur under judicial standards and supervision, or unilaterally under the authority of the Executive Branch.

[snip]

The briefings and other historical evidence raise the question whether Congress’s repeated reauthorization of the tangible things provision effectively incorporates the FISC’s interpretation of the law, at least as to the authorized scope of collection, such that even if it had been erroneous when first issued, it is now—by definition—correct. [my emphasis]

The Internet dragnet was illegal. At least 3 of the people who conveyed the importance of authorizing this program had said so — in very dramatic fashion — less than four months before she would do so.

And yet she wrote a memo saying it was legal.

Update, 8/12/14: This application confirms that George Tenet was the redacted declaration submitter.

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Time to Investigate John Brennan and Those Air Marshals Again

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Back in September I noted that the entire narrative of the guilty plea from Donald Sachtleben presented the false impression that he was the first, only, or most dangerous leaker about the UndieBomb 2.0.

But, as bmaz emphasized in his post on Donald Sachtleben’s plea agreement, there’s no hint of prosecuting Brennan, who leaked Top Secret details about the British/Saudi double agent into AQAP, even while they’re imprisoning Donald Sachtleben, who is only accused of leaking details he knew to be Secret.

[snip]

They would also have you believe the AP had no inkling of the UndieBomb plot until ABC reported inflammatory claims about cavity bombs on April 30, 2012, even in spite of ABC’s reference to TSA head John Pistole’s earlier fear-mongering about it and in spite of additional reporting about broad Air Marshall mobilization.

That was nonsensical on its face.

But it is something that Sachtleben went out of his way to make clear at his sentencing yesterday.

“I was neither the sole nor the original source of information to ‘Reporter A’ about the suicide bomb,” Sachtleben said in a statement sent by his law firm. “The information I shared with Reporter A merely confirmed what he already believed to be true. Any implication that I was the direct source of a serious leak is an exaggeration.”

Ah well. Eric Holder has his head, and DOJ doesn’t have to prosecute the CIA Director now.

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Drone Strikes on the NYT’s Claim to Have Improved

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NYT Public Editor Margaret Sullivan attempts to tell the story of why the NYT held the illegal wiretap story before the 2004 election. Amid comments from the main players, she effectively admits that the NYT only published in 2005 because James Risen’s A State of War was about to come out.

Michael V. Hayden, who was the director of the N.S.A. and later the director of the Central Intelligence Agency, told me in an interview that he argued strenuously against publication, right up until the moment when The Times decided to go ahead. His rationale: “That this effort was designed to intercept threatening communication” and to prevent another terrorist attack.

In the end, The Times published the story with a couple of guns held to its head: First, the knowledge that the information in the article was also contained in a book by Mr. Risen, “State of War,” whose publication date was bearing down like a freight train. Second, at the end, the word of a possible injunction against publishing, Mr. Risen said, provided a final push: “It was like a lightning bolt.” (Mr. Hayden said that would not have happened: “Prior restraint was never in the cards.”)

Like a game of chicken played on a high wire, it remains “the most stressful and traumatic time of my life,” Mr. Risen recalls. Although The Times later said that further reporting strengthened the story enough to justify publishing it, few doubt that Mr. Risen’s book was what took an essentially dead story and revived it in late 2005. “Jim’s book was the driving force,” Mr. Lichtblau said.

Sullivan doesn’t mention another part of the story: that shortly after the NYT accused Risen of violating their ethics policy because he did not tell the NYT his book covered topics he had reported on for the paper — not just the illegal wiretap program, but also MERLIN, the attempt to stall the Iranian nuclear program by dealing them faulty blueprints. He had apparently told them he was writing a book on George Tenet.

When that news broke in early 2006, I concluded that Risen probably used the threat of scooping the NYT, and a nondisclosure agreement, to actually get the illegal wiretap program into the paper.

Let’s assume for a moment I’m correct in understanding the NYT spokesperson to be suggesting that Risen violated those ethical guidelines by publishing this book. Here’s the scenario such an accusation seems to spell out. (Speculation alert.) Risen attempted to publish both the NSA wiretap story and the Iran nuclear bomb story in 2004. NYT editors refused both stories. Then, in 2005 Risen takes book leave (and I should say that the NYT’s book leave policy is one of the best benefits it offers its writers), misleading his editors about the content of the book. Once he returns, his editors hear rumors that the book actually features the NSA wiretap story. Only in the face of imminent publication of the book do they reconsider publishing the wiretap story. Read more →

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Senate Intelligence Swiss Cheese on OLC Memos

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Great news!

After a member of the President’s party had to hold up that President’s nominee to head the CIA just to get Office of Legal Counsel memos authorizing the killing of an American citizen with no due process, the Senate Intelligence Committee has moved to force the Administration to turn over OLC memos in the future.

Terrible news!

The language is full of ginormous loopholes that would allow the Executive Branch to avoid sharing all the memos they’re already withholding.

Here’s what it says.

(1) REQUIREMENT TO PROVIDE LIST OF OPINIONS TO CONGRESS.—Except as provided in subsections (b) and (c), not later than 180 days after the date of the enactment of this Act and annually thereafter, the Attorney General, in coordination  with the Director of National Intelligence, shall provide to the congressional intelligence committees a  listing of every opinion of the Office of Legal Counsel of the Department of Justice that has been provided to an element of the intelligence community.

(2) CONTENT.—Each listing submitted under paragraph (1) shall include—

(A) as much detail as possible about the subject of each opinion;

(B) the date the opinion was issued;

(C) a listing of each recipient agency;

(D) whether the opinion has been made available to Congress or a specific committee of  Congress, including the identity of each such committee; and

(E) for any opinion that has not been made available to Congress or a specific committee of Congress, the basis for such withholding.

(b) EXCEPTION FOR COVERT ACTION.—If the President determines that it is essential to limit access to a covert action finding under section 503(c)(2) of the National Security Act of 1947 (50 U.S.C. 3093(c)(2)), the

President may limit access to information concerning such finding that is subject to disclosure under subsection (a) to those members of Congress who have been granted access to the relevant finding under such section 503(c)(2).

(c) EXCEPTION FOR INFORMATION SUBJECT TO EXECUTIVE PRIVILEGE.—If the President determines that a particular listing subject to disclosure under subsection (a) is subject to an executive privilege that protects against such disclosure, the Attorney General shall not be required to disclose such opinion or listing if the Attorney General notifies the congressional intelligence committees, in writing, of the legal justification for such assertion of executive privilege prior to the date by which the opinion or listing is required to be disclosed.

Basically, this language requires the Attorney General to give the Intelligence Committees — not the public, not all of Congress, not even the Judiciary Committees — an annotated list — not the actual opinions! — of all the OLC memos written for an element of the Intelligence Community (which would presumably exclude the White House) in a given year.

There are two exceptions to this rule.

DOJ doesn’t have to include memos on covert operations — like torture, illegal domestic wiretapping, or drone killing — that have only been briefed to a subset of the committee, such as the Gang of Four. This would allow the White House to continue to hide all the OLC memos about which there have been contentious fights in the past, including the roughly seven OLC memos on targeted killing they’re still (as far as we know) sitting on.

And DOJ doesn’t have to include memos “subject to” executive privilege (it’s not clear he has to formally invoke executive privilege, mind you). If the limitation on this language wouldn’t already have done so, this would allow the White House to hide memos like the torture memos addressed to the White House rather than CIA or DOD.

Seriously, the annotated list mandated for the Intelligence Committees ought to be the standard mandated for the public, with provision to hide secret stuff. Which is close to the standard earlier Presidents had abided by.

So what this basically does is enshrine the status quo, in which the President doesn’t have to tell the American people what his lawyers say the law is.

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