For some reason Lawfare thinks it is interesting that the two Democratic members of the Gang of Four — who have apparently not figured out there’s a difference between the hack (allegedly done by Russia) and the dissemination (done by Wikileaks, which has different motivations) are calling for information on the DNC hack to be released.
The recent hack into the servers of the Democratic National Committee (DNC) and the subsequent release via WikiLeaks of a cache of 20,000 internal e-mails, demonstrated yet again the vulnerability of our institutions to cyber intrusion and exploitation. In its timing, content, and manner of release, the email dissemination was clearly intended to undermine the Democratic Party and the presidential campaign of Secretary Hillary Clinton, and disrupt the Democratic Party’s convention in Philadelphia.
Specifically, we ask that the Administration consider declassifying and releasing, subject to redactions to protect sources and methods, any Intelligence Community assessments regarding the incident, including any that might illuminate potential Russian motivations for what would be an unprecedented interference in a U.S. Presidential race, and why President Putin could potentially feel compelled to authorize such an operation, given the high likelihood of eventual attribution.
For some equally bizarre reason, WaPo thinks Devin Nunes’ claim — in the same breath as he claims Donald Trump’s repeated calls on Russia to release Hillary’s email were sarcastic — that there is “no evidence, absolutely no evidence” that Russia hacked the DNC to influence the election is credible.
Rep. Devin Nunes (R-Calif.), the chairman of the House Intelligence Committee, told The Washington Post in an interview Wednesday that speculation about Russian attempts to sway the presidential election is unfounded.
“There is no evidence, absolutely no evidence, that the Russians are trying to influence the U.S. election,” Nunes said, repeatedly swatting away the suggestion made by some Democrats that the Russians may be using their intelligence and hacking capabilities to boost Donald Trump’s chances.
“There is evidence that the Russians are actively trying to hack into the United States — but it’s not only the Russians doing that. The Russians and the Chinese have been all over our networks for many years.”
These are two obvious (because they’re on the record) examples of partisans using their access to classified information to try to boost or refute a narrative that the Hillary Clinton campaign has explicitly adopted: focusing on the alleged Russian source of the hack rather on the content of the things the hack shows.
Kudos to Richard Burr, who is facing a surprisingly tough reelection campaign, for being the one Gang of Four member not to get involved in the partisan bullshit on this.
There are plenty of people with no known interest in either seeing a Trump or a Clinton presidency that have some measure of expertise on this issue (this is the rare moment, for example, when I’m welcoming the fact that FBI agents are sieves for inappropriate leaks). So no outlet should be posting something that obviously primarily serves the narrative one or the other candidate wants to adopt on the DNC hack without a giant sign saying “look at what partisans have been instructed to say by the campaign.” That’s all the more true for positions, like the Gang of Four, that we’d prefer to be as little politicized as possible. Please don’t encourage those people to use their positions to serve a partisan narrative, I beg of you!
For the same reason I’m peeved that Harry Reid suggested the Intelligence Community give Trump fake intelligence briefings. Haven’t we learned our lesson about politicizing intelligence?
More generally, I think journalists should be especially careful at this point to make it clear whether their anonymous sources have a partisan dog in this fight, because zero of those people should be considered to be unbiased when they make claims about the DNC hack.
A very special case of that comes in stories like this, where Neocon ideologue Eliot Cohen, identified as Bush appointee, is quoted attacking Trump for suggesting Russia should leak anymore emails.
But now Republican-aligned foreign policy experts are also weighing in along similar lines.
“It’s appalling,” Dr. Eliot A. Cohen, who was counselor of the State Department during the second term of George W. Bush’s presidency, said to me today. “Calling on a foreign government to go after your opponent in an American election?”
Cohen recently organized an open letter from a range of GOP national security leaders that denounced Trump in harsh terms, arguing that Trump’s “own statements” indicate that “he would use the authority of his office to act in ways that make America less safe, and which would diminish our standing in the world.” The letter said: “As committed and loyal Republicans, we are unable to support a Party ticket with Mr. Trump at its head. We commit ourselves to working energetically to prevent the election of someone so utterly unfitted to the office.”
But this latest from Trump, by pushing the envelope once again, raises the question of whether other prominent Republicans are ever going to join in.
For instance, to my knowledge, top national security advisers to George W. Bush, such as Stephen Hadley and Condoleezza Rice (who was also secretary of state), have yet to comment on anything we’ve heard thus far from Trump. Also, there could theoretically come a point where figures like former Defense Secretary Donald Rumsfeld and possibly even Dubya and George H.W. Bush feel compelled to weigh in.
Meanwhile, senior Republican elected officials who have backed Trump continue to refrain from taking on his comments forcefully or directly. Some Republicans actually defended Trump’s comments today. Paul Ryan’s spokesman issued a statement saying this: “Russia is a global menace led by a devious thug. Putin should stay out of this election.”
I feel differently about Trump’s asinine comment than I do about attribution of the attack. I’m all in favor of Hillary’s campaign attacking Trump for it, and frankly Cohen is a far more credible person to do so than Jake Sullivan and Leon Panetta, who also launched such attacks yesterday, because as far as I know Cohen has not mishandled classified information like the other two have.
But I would prefer if, rather than IDing Cohen as one of the Republicans who signed a letter opposing Trump, Greg Sargent had IDed him as someone who has also spoken affirmatively for Hillary.
On foreign policy, Hillary Clinton is far better: She believes in the old consensus and will take tough lines on China and, increasingly, Russia. She does not hesitate to make the case for human rights as a key part of our foreign policy. True, under pressure from her own left wing, she has backtracked on the Trans-Pacific Partnership, a set of trade deals that supports American interests by creating a counterbalance to China and American values by protecting workers’ rights. But she might edge back toward supporting it, once in.
Admittedly, this was at a time when Cohen and others still hoped some Mike Bloomberg like savior would offer them a third choice; that was before Bloomberg gave a very prominent speech endorsing Hillary last night.
Here’s the thing. The Neocons (led by Robert Kagan, who’s wife got named as a target of Russian aggression in the Feinstein-Schiff letter) are functioning as surrogates for Hillary just like top Democrats are. They are, just like Democrats are, now scrambling to turn their endorsements into both policy and personnel wins. Therefore we should no more trust the independence of a pro-Hillary Neocon — even if he did work for George Bush — than we would trust the many Democrats who have used their power to help Hillary win this election. Progressives should be very wary about the promises Hillary has made to get the growing number of Neocons (and people like Bloomberg) to so aggressively endorse her. Because those endorsements will come with payback, just like union or superdelegate endorsements do.
In any case, it’s hard enough to tease out attribution for two separate hacks and the subsequent publication of the hacked data by Wikileaks. Relying on obviously self-interested people as sources only further obscures the process.
Update: The Grammar Police actually nagged me to fix “whose/who’s” error in the Kagan sentence. Fun!
Fresh off being caught lying about rolling her eyes in response to calls for Palestinian rights, Neera Tanden has rolled out something called the National Security Leadership Alliance. Best as I can tell, it exists mainly on paper right now — I couldn’t even find it on CAP’s site yet. But it seems designed to fear-monger about what will happen if Trump becomes Commander-in-Chief.
The project, called the National Security Leadership Alliance, will be funded by C.A.P. Action. It will feature a roster of major members of the foreign policy and national security community, including two retired four-star generals; Leon E. Panetta, the former C.I.A. director; Madeleine K. Albright, the former secretary of state; Eric H. Holder Jr., the former attorney general; and Carl Levin, the former Michigan senator. All have endorsed Mrs. Clinton.
There will be an effort to highlight precisely what, in the military arsenal, Donald J. Trump would have access to as president. Mr. Trump has been criticized for his views on foreign policy, criticisms that have been central to the case that Mrs. Clinton has made against him in an effort to describe the stakes of the 2016 presidential election. The Center for American Progress is led by a top outside adviser to Mrs. Clinton, Neera Tanden, and the new project seeks to put a spotlight on what officials are calling a progressive foreign policy vision.
I’m perfectly okay with fearmongering about Trump. But let’s look at this lineup. It features the woman who said letting half a million Iraqi children die was worth the price of enforcing sanctions against the country. It also includes a guy, Panetta, whose exposure of the identities of Osama bin Laden killers’ to Hollywood producers serves to reinforce what a double standard on classified information Hillary (and Panetta) benefit from.
But I’m most curious by a “national security” team that includes both Eric Holder and Carl Levin, especially given the NYT focus, in announcing the venture, on Brexit.
“I think what brought us together is obviously a lot of concern about some of the division and polarization that we’re seeing in the world,” Mr. Panetta said in an interview. “We know we’re living in a time of great change and uncertainty.”
But he added, “The concern we have is we see these forces of division that are prepared to throw out the fundamental” principles of foreign policy in the United States over many decades.
“What we’re learning from ‘Brexit’ is that there’s a price to be paid in terms of letting out emotion dictate policy instead of responsible leadership,” he said, referring to Britain’s vote to leave the European Union. “We shouldn’t throw the baby out with the bath water.”
Leon Panetta, in rolling out a venture including Carl Levin — who as head of the Senate’s Permanent Subcommittee on Investigations worked tirelessly for some kind of accountability on bank crime — and Eric Holder — who ignored multiple criminal referrals from Levin, including one pertaining to Goldman Sachs head Lloyd Blankfein — says the lesson from Brexit is that we can’t let emotion dictate policy but instead should practice “responsible leadership” guarding the “fundamental principles of foreign policy in the United States over many decades.”
Of course, as David Dayen argued convincingly, to the extent Brexit was an emotional vote, the emotions were largely inflamed by elite failures — the failures of people like Eric Holder to demand any responsibility (Dayen doesn’t deal with the equally large failures of hawks like Albright whose destabilizing policies in the Middle East have created the refugee crisis in Europe, which indirectly inflamed Brexit voters).
Again, I’m okay if Hillary wants to spend her time fearmongering about the dangers of Trump.
But to do so credibly, she needs to be a lot more cognizant of the dangers her own team have created.
In what has become a serial event, the State Department and Intelligence Community people handling Jason Leopold’s FOIA of Hillary Clinton emails have declared yet more emails to be Top Secret.
The furor over Hillary Clinton’s use of a private email account grew more serious for the Democratic presidential front-runner Friday as the State Department designated 22 of the messages from her account “top secret.”
It was the first time State has formally deemed any of Clinton’s emails classified at that level, reserved for information that can cause “exceptionally grave” damage to national security if disclosed.
State did not provide details on the subject of the messages, which represent seven email chains and a total of 37 pages. However, State spokesman John Kirby said they are part of a set the intelligence community inspector general told Congress contained information classified for discussing “Special Access Programs.”
Now, as I have said before, one thing that is going on here is that CIA is acting just like CIA always does when it declares publicly known things, including torture and drones, to be highly secret. It appears likely that these Top Secret emails are yet another set of emails about the worst kept secret in the history of covert programs, CIA’s drone killing in Pakistan. And so I am sympathetic, in principle, to Hillary’s campaign claims that this is much ado about nothing.
But they might do well to find some other spokesperson to claim that this is just overclassification run amok.
“This is overclassification run amok. We adamantly oppose the complete blocking of the release of these emails,” campaign spokesman Brian Fallon said on Twitter. Appearing on MSNBC after the news broke, Fallon vowed to fight the decision.
“You have the intelligence community, including an Intelligence Community Inspector General, as well as the inspector general at the State Department, that have been insisting on certain ways of deciding what is classified and what’s not,” he said. “We know that there has been disagreement on these points, and it has spilled out into public view at various points over the last several months. It now appears that some of the loudest voices in this interagency review that had some of the strongest straightjacket-type opinions on what should count as classified, have prevailed. That’s unfortunate. We strongly disagree with the finding that has been reached today, and we are going to be contesting it and seeking to have these emails released.”
Alternately Hillary can declare that if she is elected, she’ll pardon both Jeffrey Sterling and Chelsea Manning.
Sterling’s prosecution for, in part, having 3 documents about dialing a rotary phone in his home that were retroactively classified Secret, happened while Brian Fallon presided over DOJ’s Office of Public Affairs; Fallon sat by as James Risen got questioned about his refusal to testify. Sterling’s retention of documents that weren’t marked Secret is surely the same kind of “overclassification run amok,” and by the same agency at fault here, that Fallon is now complaining about. So shouldn’t Fallon and Clinton be discussing a pardon for Sterling?
Then there’s Manning. As Glenn Greenwald noted, in that case Clinton had a different attitude about the sensitivity of documents classified Secret or less.
Manning was convicted and sentenced to 35 years in prison. At the time, the only thing Hillary Clinton had to say about that was to issue a sermon about how classified information “deserves to be protected and we will continue to take necessary steps to do so” because it “affect[s] the security of individuals and relationships.”
So if the nation’s secrets aren’t really as secret as DOJ and State and DOD have claimed, shouldn’t these two, along with people like Stephen Jin-Woo Kim, be pardoned?
Amid Fallon and Clinton’s prior support for this level of classification, there’s something else odd about the response to this scandal (which I have said is largely misplaced from the stupid decision to run her own server to the issue of classified information).
First, the response from many supporters — and it’s a point I’ve made too — is that this doesn’t reflect on Hillary because she mostly just received these emails, she didn’t send them. That’s true. And it largely limits any legal liability Hillary herself would have.
But this particular response comes against the backdrop of Hillary attacking Bernie for not giving a foreign policy speech before Iowa (a critique I’m somewhat sympathetic with, although debates have been focused on it), and against this approving story in the Neocon press on Hillary forming a shadow cabinet.
Team Hillary is in the process of setting up formal advisory teams and working groups divided into regional and thematic subjects, similar to the structure of the National Security Council, several participants in the project told me. Unlike in 2008, when Clinton and Barack Obama competed for advisers, this time around all the Democratic foreign-policy types are flocking to her team because Clinton is the only game in town.
The groups report up to the campaign’s senior foreign policy adviser, Jake Sullivan, who was Clinton’s deputy chief of staff and director of policy planning when she was secretary of state.
As it notes, this shadow cabinet reports to Jake Sullivan. Sullivan is, according to one report, the staffer who sent the most emails that have since been declared classified.
Nearly a third of the classified messages released so far from former Secretary of State Hillary Rodham Clinton’s emails came from one man: Jake Sullivan, who served as her deputy chief of staff in the department, and is now the top foreign policy adviser to her presidential campaign.
If Hillary’s supporters argue that she can’t be held responsible because she didn’t send these, does that mean they would hold Sullivan, Hillary’s presumptive National Security Advisor, responsible instead?
Then there’s this detail about outside advisors to this shadow cabinet: it includes Leon Panetta, who not only leaked highly classified information in his memoir, but also would have been busted for exposing the Navy SEALs who offed Osama bin Laden if the game weren’t so rigged to excuse senior leakers.
In addition to the working groups, Sullivan relies on a somewhat separate group of senior former officials who have more frequent interaction with the campaign leadership and Clinton herself. Many of these advisers aren’t publicly affiliated with the campaign because they have leadership roles with organizations that have not endorsed any candidate for president.
But sources close to the campaign told me that Clinton, Sullivan and campaign chairman John Podesta are in regular contact with former National Security Advisor Tom Donilon, former Defense Secretary Leon Panetta and former Secretary of State Madeleine Albright.
Is the effort to keep the identities of the men who killed OBL secret also, “overclassification run amok”? Or does Panetta’s role in Hillary’s foreign policy team suggest her crowd really is that hypocritical about who can leak classified information?
I’d really love it if Hillary came out strongly against the paranoid secrecy that stifles our foreign policy (and just yesterday led to Ashkan Soltani losing a position as a technical advisor for the White House, presumably because of his role in reporting the Snowden documents).
But thus far that’s not what she’s doing: her campaign is making a limited critique of this paranoid secrecy, only applicable when it impacts those close to her.
There’s a name missing from Charlie Savage’s latest — a description of the legal analysis behind Osama bin Laden’s killing: Caroline Krass, who served as Acting Head of DOJ’s Office of Legal Counsel from January to September 2011. She’s not mentioned, apparently, because she was not among the four lawyers who collaborated on five memos deeming the raid to be legal.
Weeks before President Obama ordered the raid on Osama bin Laden’s compound in May 2011, four administration lawyers hammered out rationales intended to overcome any legal obstacles — and made it all but inevitable that Navy SEALs would kill the fugitive Qaeda leader, not capture him.
Just days before the raid, the lawyers drafted five secret memos so that if pressed later, they could prove they were not inventing after-the-fact reasons for having blessed it. “We should memorialize our rationales because we may be called upon to explain our legal conclusions, particularly if the operation goes terribly badly,” said Stephen W. Preston, the C.I.A.’s general counsel, according to officials familiar with the internal deliberations.
This account of the role of the four lawyers — Mr. Preston; Mary B. DeRosa, the National Security Council’s legal adviser; Jeh C. Johnson, the Pentagon general counsel; and then-Rear Adm. James W. Crawford III, the Joint Chiefs of Staff legal adviser — is based on interviews with more than a half-dozen current and former administration officials who had direct knowledge of the planning for the raid.
The account makes it quite clear that Eric Holder was excluded from discussions.
On April 28, 2011, a week before the raid, Michael E. Leiter, the director of the National Counterterrorism Center, proposed at least telling Mr. Holder. “I think the A.G. should be here, just to make sure,” Mr. Leiter told Ms. DeRosa.
This means that on the OBL raid, Donilon excluded the Attorney General in the same way Dick Cheney excluded John Ashcroft from key information about torture and wiretapping. I find that interesting enough, given hints that Holder raised concerns about the legal authority to kill Anwar al-Awlaki in the weeks after we missed him on December 24, 2009, which led to OLC writing two crappy memos authorizing that killing in ways that have never been all that convincing.
But Savage provides no explanation for why Krass was excluded, which is particularly interesting given that the month after OBL’s killing, Savage revealed that President Obama had blown off Krass’ advice on Libya (as I read it, the decision to blow off her advice would have happened after the OBL killing, though I am not certain on that point). The silence about Krass is also remarkable given that she was looped in on the initial Libya decision — and asked to write a really bizarre memo memorializing advice purportedly given after the fact.
On Libya, Krass was looped in on questions addressing precisely the same issues addressed in the OBL killing (indeed, we were assassinating Qaddafi’s family members in Libya, which should have presented many of the same legal questions) both before and (as I understand it) after the OBL killing, but she was apparently not read in at all on the OBL killing itself.
There’s one more reason I think the question of OBL’s killing was more uncertain than laid out here. Savage reveals that even though lawyers had authorized not telling Congress about the raid, Leon Panetta did so on his own anyway.
Mr. Preston wrote a memo addressing when the administration had to alert congressional leaders under a statute governing covert actions. Given the circumstances, the lawyers decided that the administration would be legally justified in delaying notification until after the raid. But then they learned that the C.I.A. director, Leon E. Panetta, had already briefed several top lawmakers about Abbottabad without White House permission.
This is the action of someone — rightly — covering his ass, doing what the law actually requires rather than what his lawyer says it permits.
By the way, any bets on whether SSCI got a copy of that Preston memo, stating that they didn’t need to be informed on covert operations, contrary to the clear language of the National Security Act, before they approved his promotion from CIA General Counsel to DOD General Counsel (where he remains)? I bet no.
Ultimately, Savage depicts an Administration going even further than Cheney had on inventing legal authorizations for secret actions. Obama (and Donilon) will never catch heat for it like Cheney did, because everyone likes dancing on OBL’s watery grave. But make no mistake, this exhibits some of the same behaviors as we criticize Cheney for.
Update: I find this, from Savage’s June 2011 story on Krass, of particular interest given Savage’s description of the decision process on OBL.
The administration followed an unusual process in developing its position. Traditionally, the Office of Legal Counsel solicits views from different agencies and then decides what the best interpretation of the law is. The attorney general or the president can overrule its views, but rarely do.
In this case, however, Ms. Krass was asked to submit the Office of Legal Counsel’s thoughts in a less formal way to the White House, along with the views of lawyers at other agencies. After several meetings and phone calls, the rival legal analyses were submitted to Mr. Obama, who is a constitutional lawyer, and he made the decision.
A senior administration official, who spoke on the condition of anonymity to talk about the internal deliberations, said the process was “legitimate” because “everyone knew at the end of the day this was a decision the president had to make” and the competing views were given a full airing before Mr. Obama.
Fresh off approving the phone dragnet for what might be the last time, Judge James Boasberg rejected Jason Leopold’s FOIA for the Panetta Report. Ultimately, Boasberg upheld a broad Exemption 5 deliberative privilege claim.
But his discussion to justify that claim is pretty funny. Basically, he says CIA doesn’t have to release the report because (presumably unlike everything else CIA has released on its torture) this report was frank and truthful.
[R]equiring disclosure of the Reviews would cause the sort of harm that the deliberative-process privilege was designed to prevent — i.e, inhibiting frank and open communications among agency personnel.
Had the SRT known that the Reviews could become public, its members would likely have been tempted to highlight on the information that would paint the agency’s prior actions in a positive light and to avoid calling attention to information that could have embarrassed the agency or its officials.
Everyone knows the Panetta’s CIA is only supposed to talk about torture in highly produced torture snuff like Zero Dark 30. God forbid citizens be able to balance that propaganda against the actual truth.
1) If you leak who-knows-what to your mistress, you might actually get prosecuted (or at the very least, prosecutors and/or FBI Agents will leak to the press that they recommended you be prosecuted but the Attorney General has been stalling on that decision).
The F.B.I. and Justice Department prosecutors have recommended bringing felony charges against retired Gen. David H. Petraeus for providing classified information to his former mistress while he was director of theC.I.A., officials said, leaving Attorney General Eric H. Holder Jr. to decide whether to seek an indictment that could send the pre-eminent military officer of his generation to prison.
Mr. Holder was expected to decide by the end of last year whether to bring charges against Mr. Petraeus, but he has not indicated how he plans to proceed. The delay has frustrated some Justice Department and F.B.I officials and investigators who have questioned whether Mr. Petraeus has received special treatment at a time Mr. Holder has led an unprecedented crackdown on government officials who reveal secrets to journalists.
The protracted process has also frustrated Mr. Petraeus’s friends and political allies, who say it is unfair to keep the matter hanging over his head. Senator John McCain, Republican of Arizona, wrote to Mr. Holder last month that the investigation had deprived the nation of wisdom from one of its most experienced experts.
2) If you leak highly classified information that makes the Administration look good to friendly Hollywood producers, not only won’t you be prosecuted, but if an Inspector General employee in turn leaks that you leaked that information they’ll get investigated.
More than two years after sensitive information about the Osama bin Laden raid was disclosed to Hollywood filmmakers, Pentagon and CIA investigations haven’t publicly held anyone accountable despite internal findings that the leakers were former CIA Director Leon Panetta and the Defense Department’s top intelligence official.
Instead, the Pentagon Inspector General’s Office is working to root out who might have disclosed the findings on Panetta and Undersecretary of Defense for Intelligence Michael Vickers to a nonprofit watchdog group and to McClatchy.
3) If you’re Obama’s favorite General and you leak unbelievably sensitive information about America and Israel ushering a new world of cyberwarfare, you’ll lose your security clearance but then everyone will forget about it.
Legal sources tell NBC News that the former second ranking officer in the U.S. military is now the target of a Justice Department investigation into a politically sensitive leak of classified information about a covert U.S. cyber attack on Iran’s nuclear program.
According to legal sources, Retired Marine Gen. James “Hoss” Cartwright, the former vice chairman of the Joint Chiefs of Staff, has received a target letter informing him that he’s under investigation for allegedly leaking information about a massive attack using a computer virus named Stuxnet on Iran’s nuclear facilities. Gen. Cartwright, 63, becomes the latest individual targeted over alleged leaks by the Obama administration, which has already prosecuted or charged eight individuals under the Espionage Act.
This is all very confusing.
Apparently there are rules about leaking classified information and President Obama’s Administration is more aggressive about enforcing those rules than any administration ever.
Except if you’re a top National Security official.
McClatchy reports today that the Senate Intelligence Report will include no details on the White House role in torture.
The Senate Intelligence Committee report also didn’t examine the responsibility of top Bush administration lawyers in crafting the legal framework that permitted the CIA to use simulated drowning called waterboarding and other interrogation methods widely described as torture, McClatchy has learned.
“It does not look at the Bush administration’s lawyers to see if they were trying to literally do an end run around justice and the law,” the person said.
McClatchy’s story is interesting, in part, because I had heard that the report was going to admit what has been in the public domain for years: the torture program, contrary to almost all reporting, was authorized by Presidential finding, not primarily by the memos that garner all the attention.
If the Torture Report is no longer going to confirm that, it is far bigger news than McClatchy has conveyed. It would mean someone — presumably the White House! (though remember the Finding’s author, Cofer Black, was involved in reviewing the document) — had won concessions in the declassification discussions to hide the role of President Bush in personally authorizing torture.
That would be consistent with President Obama’s rather remarkable efforts to keep a short mention of the September 17, 2001 Gloves Come Off Memorandum of Notification suppressed in ACLU’s torture FOIA (something that’s in the public record, but which I have been the only one to report).
But if President Obama’s White House has, a second time, intervened to prevent public confirmation that the President authorized torture, we really ought to start demanding to know why that’s the case. Remember when the 2nd Circuit backed White House efforts to keep mention of the MON suppressed, the White House said it was still using the MON.
The other reason I find McClatchy’s report curious is because it leaves something utterly central out of its narrative.
As Katherine Hawkins noted yesterday, McClatchy missed a key detail in the chronology of when and how Republicans backed out of the torture review.
Obama DOJ investigation into torture is not “prior” to SSCI report. Launched after SSCI, & is reason GOP withdraws
But there’s one more part of that chronology — one McClatchy might actually review if it wants the things it says it wants: the Office of Public Responsibility report into OLC lawyers’ role in the torture memos. Reporting in 2009 made it clear that Eric Holder launched the John Durham investigation in response to reading the OPR Report. So the chronology goes OPR Report, Durham investigation, GOP withdraws from SSCI Torture Report which (McClatchy argues) is when the Democrats could have turned and pushed to get documents implicating Bush White House figures.
While both David Addington and Tim Flanigan refused to be interviewed for the OPR report, it made it clear (especially Jay Bybee and John Yoo’s rebuttals) that both had had a direct role in setting up the legal loopholes CIA used to conduct torture. Between that and other public (largely unreported by anyone but me) documents, it is fairly clear that in response to concerns raised around July 10, 2002, CIA tried to get DOJ to give “advance” declination of prosecution (though for conduct that surely had already occurred). On July 13, Michael Chertoff refused, probably because Ali Soufan had already raised concerns about the conduct (his concerns probably relate to the use of mock burial) to give advance declination for torture. This led John Yoo to freelance a July 13, 2002 fax laying out how CIA could avoid accountability; that appears to be what Jonathan Fredman relied on in his advice to the torturers, not the more famous Bybee Memos. Nevertheless, at a July 16, 2002 meeting at the White House, it was decided (Yoo and Addington differ, it appears, on who did the deciding, but it is a rock solid bet that Addington did) that the Bybee Memo would include Commander of Chief language on how to avoid prosecution.
There are a number of other moments in the history of the program where White House responsibility is clear. But at that moment on July 16, 2002, David Addington got John Yoo to provide legal cover for anything the President ordered CIA do; he did so, of course, after CIA had been torturing for months on Presidential orders.
The answers to many of the questions McClatchy says have gone unanswered are sitting right there in the OPR report. And those answers are crucial to understanding the dance over declassification going on right now.
Aside from whatever else the Torture Report is, it is also a report that dodges the underlying power structure, in which the President orders the CIA to break the law and later ensures CIA avoids any accountability for doing so. At some point in this Torture Report process — fairly recently too! — Democrats seemed interested in exposing that dynamic, a dynamic President Obama has benefitted from at least as much as Bush did, going so far as to permit him to have CIA kill a US citizen with no due process. (That’s probably why Leon Panetta told some fibs in his memoir on this point.)
Ultimately, we’re never going to rein in CIA until we expose the mutual embrace of complicity the White House and CIA repeatedly rely on. Now it looks like the Senate Intelligence Committee has — in bipartisan fashion — decided to back off doing so here.
As you likely know, I’m firmly of the belief that one should call DC memoirs — especially those written by National Security figures — autobiographical novels, because they tend to stray so far from the truth (that’s true of all autobiographies, but in DC it seems far more motivated). Turbo-Tax Timmy Geithner is about the only DC figure whose memoir has ever been treated with any of the skepticism it deserves.
With that in mind, I wanted to look at this detail from Leon Panetta’s book, which Katherine Hawkins alerted me to.
To illustrate how Obama’s micromanagement hurt relations with Congress, Panetta describes the negotiations with Dianne Feinstein over the cables that went into the torture report.
She requested access for her staff to every operational cable regarding the program, a database that had to be in the hundreds of thousands of documents. These were among the most sensitive documents the agency had. But Feinstein’s staff had the requisite clearances and we had no basis to refuse her. Still, I wanted to have some control over this material, so I proposed a deal: Instead of turning over the documents en masse to her staff, we would set up a secure room in Virginia. Her staff could come out to the secure facility and review documents one by one, and though they could take notes, the documents themselves would stay with CIA.
When the White House found out, they went apeshit, calling Panetta into the Situation Room for a spanking.
“The president wants to know who the fuck authorized this release to the committees,” Rahm said, slamming his hand down on the table. “I have a president with his hair on fire, and I want to know what the fuck you did to fuck this up so bad.”
I’d known Rahm a long time, and I was no stranger to his language or his temper, so I knew when to worry about an outburst and when it was mostly for show. On this occasion, my hunch was that Rahm wasn’t that perturbed but that Obama probably was and that others at the table, particularly Brennan and McDonough, were too. Rahm was sticking up for them by coming after me.
It went back and forth like this for about fifteen minutes. Brennan and I even exchanged sharp words when I, unfairly, accused him of not sticking up for the agency in the debate over the interrogation memos. Finally, the White House team realized that whether they liked it or not, there was no way we could go back on our deal with the committee. And just like that, the whole matter was dropped.
Rahm and Brennan spanked Panetta, he claims, but then the whole thing blew over.
There are just three problems with this story.
First, according to the quotations Dianne Feinstein revealed from her agreement with Panetta, the CIA wasn’t supposed to “have … control over this material.”
Per an exchange of letters in 2009, then-Vice Chairman Bond, then-Director Panetta, and I agreed in an exchange of letters that the CIA was to provide a “stand-alone computer system” with a “network drive” “segregated from CIA networks” for the committee that would only be accessed by information technology personnel at the CIA—who would “not be permitted to” “share information from the system with other [CIA] personnel, except as otherwise authorized by the committee.”
Far more significantly, Panetta doesn’t mention the documents that disappeared during Panetta’s tenure — ostensibly, on orders from the White House.
In early 2010, the CIA was continuing to provide documents, and the committee staff was gaining familiarity with the information it had already received.
In May of 2010, the committee staff noticed that [certain] documents that had been provided for the committee’s review were no longer accessible. Staff approached the CIA personnel at the offsite location, who initially denied that documents had been removed. CIA personnel then blamed information technology personnel, who were almost all contractors, for removing the documents themselves without direction or authority. And then the CIA stated that the removal of the documents was ordered by the White House. When the committee approached the White House, the White House denied giving the CIA any such order.
After a series of meetings, I learned that on two occasions, CIA personnel electronically removed committee access to CIA documents after providing them to the committee. This included roughly 870 documents or pages of documents that were removed in February 2010, and secondly roughly another 50 were removed in mid-May 2010.
And Panetta also doesn’t mention what may or may not be the same set of documents, those withheld by CIA on behalf of the White House, as described by Stephen Preston in response to Mark Udall.
With specific reference to documents potentially subject to a claim of executive privilege, as noted in the question, a small percentage of the total number of documents produced was set aside for further review. The Agency has deferred to the White House and has not been substantively involved in subsequent discussions about the disposition of those documents.
In other words, CIA didn’t live up to its deal with Feinstein, not with respect to this set of documents, anyway. After turning over all the cables it believed SSCI had a right to obtain, it then took some back. As far as we know, it never did provide them.
We know that one of the Torture Report’s conclusions is that the CIA lied to the White House.
While there’s good reason to believe CIA lied to Condi Rice, there’s also abundant reason to believe that Dick Cheney and David Addington knew precisely what was going on. If I had to guess, the documents CIA stole back probably make that clear.
Panetta would have us believe that, after his spanking by John Brennan and others, the whole matter was dropped. Which is a convenient tale, except that it obscures that the White House succeeded in clawing back documents CIA originally believed SSCI was entitled to.
Recall that last fall, Barack Obama spent some time altering the public record on when CIA-trained death squads first entered Syria to move the date from just before the Ghouta sarin attack to just after (while also trying to shrink the size of those first groups). But the US was a month behind Pakistan’s Taliban, who also sent fighters to Syria, ostensibly on the same side as us this time, to fight pro-Assad forces. But while these efforts on the same side in Syria are having little success as Assad remains in power and might even be gaining the upper hand, the work of the CIA and Taliban on opposite sides in Pakistan has produced a devastating result, with the World Health Organization announcing yesterday that it has declared a Public Health Emergency of International Concern over the spread of polio to countries where it previously had been eradicated:
After discussion and deliberation on the information provided, and in the context of the global polio eradication initiative, the Committee advised that the international spread of polio to date in 2014 constitutes an ‘extraordinary event’ and a public health risk to other States for which a coordinated international response is essential. The current situation stands in stark contrast to the near-cessation of international spread of wild poliovirus from January 2012 through the 2013 low transmission season for this disease (i.e. January to April). If unchecked, this situation could result in failure to eradicate globally one of the world’s most serious vaccine preventable diseases. It was the unanimous view of the Committee that the conditions for a Public Health Emergency of International Concern (PHEIC) have been met.
Although fundamentalist Islamic groups have long accused vaccination campaigns, and especially polio vaccinations, of being efforts by the West to sterilize Muslims, the very high profile case of Dr. Shakeel Afridi carrying out a hepatitis vaccination ruse on on behalf of the CIA in an effort to obtain blood samples from Osama bin Laden’s compound in Abbottabad provided a refreshed incentive for attacks on vaccine programs.
Marcy pointed out the stupidity of Leon Panetta’s confirmation that Afridi worked with the CIA in the ruse the day before Panetta’s 60 Minutes segment ran:
Not only does this presumably put more pressure on Pakistan to convict Afridi of treason (he remains in custody), but it exacerbates the problem of having used a vaccination campaign as cover in the first place, confirming on the record that similar campaigns in poor countries might be no more than a CIA front.
I presume someone in the White House gave Panetta permission to go blab this on 60 Minutes; I assume he’s in no more legal jeopardy than Dick Cheney was when he insta-declassified Valerie Plame’s identity.
But shit like this discredits every single claim national security experts make about the need for secrecy. I mean, how are CIA officers ever going to recruit any more assets when the assets know that the CIA director may, at some time in the future that’s politically convenient, go on 60 Minutes and confirm the relationship?
Afridi was eventually sentenced to 30 years imprisonment, not on treason but on other dubious charges and in a shopped venue. And the fallout in Pakistan’s tribal areas from US confirmation of the vaccination ruse was exactly as might be expected: multiple deadly attacks on polio vaccine workers and many new cases of paralyzed children.
While the polio virus circulating in Syria doesn’t appear to have come directly with the Taliban fighters sent from Pakistan, it is indeed a strain from Pakistan’s tribal areas that is in Syria now:
Thirteen cases of wild poliovirus type 1 (WPV1) have been confirmed in the Syrian Arab Republic. Genetic sequencing indicates that the isolated viruses are most closely linked to virus detected in environmental samples in Egypt in December 2012 (which in turn had been linked to wild poliovirus circulating in Pakistan).
WHO is recommending drastic measures, primarily calling for all travelers from Pakistan, Cameroon and Syria to be vaccinated for polio, preferably at least four weeks prior to international travel, but at least at departure if it hasn’t been done earlier. WHO is also calling for increased efforts in vaccinations in countries (Afghanistan, Equatorial Guinea, Ethiopia, Iraq, Israel, Somalia and Nigeria) where the virus is known to be present but from which transmission has not been seen.
So the fears from two years ago on the impact of the CIA’s actions on polio eradication are now met. But keep in mind that it’s not just vaccine programs that were put at risk by this incredibly stupid move. A large alliance of humanitarian groups complained directly to the CIA that all humanitarian groups were put at risk by the move, since the CIA ruse was carried out under cover of a humanitarian organization. Will John Brennan be able to heed this advice?
Five years ago, I reported (BREAKING) that the Bush Administration (aka Dick Cheney) made the torture program a Special Access Program in unusual fashion. Rather than CIA Director George Tenet make torture a SAP, as mandated by the Executive Order governing such things, unnamed people in the National Security Council did so.
Panetta tells a funny story about how (but not when) the torture program became a special access program.
Section 6.1(kk) of the Executive Order defines a “special access program” as “a program established for a special class of classified information that imposes safeguarding and access requirements that exceed those normally required for information at the same classification level.” Section 4.5 of the Order specifies the U.S. Government officials who may create a special access program. This section further provides that for special access programs pertaining to intelligence activities (including special activities, but not including military operations, strategic, and tactical programs), or intelligence sources or methods, this function shall be exercised by the Director of the CIA.
Officials at the National Security Council, (NSC) determined that in light of the extraordinary circumstances affecting the vital interests of the United States and the senstivity of the activities contemplated in the CIA terrorist detention and interrogation program, it was essential to limit access to the information in the program. NSC officials established a special access program governing access to information relating to the CIA terrorist detention and interrogation program. As the executive agent for implementing the terrorist detention and interrogation program, the CIA is responsible for limiting access to such information in accordance with the NSC’s direction. [my emphasis]
See the funny bit? The first paragraph says the Director of the CIA “shall” “exercise” the function of creating special access programs pertaining to intelligence. But then the very next paragraph says “NSC officials established a special access program.” One paragraph says the Director of CIA has to do it, but the next paragraph admits someone else did it.
Since that time, I’ve asked experts in classification and they agree that something funky went down (note, too, that torture wasn’t a SAP at the very beginning).
I believe torture’s odd SAP status is one of the things that has implicated the Presidency, which the Obama Administration went to some lengths to cover up.
But it also should dictate the White House take the lead on declassification of the torture program.
Don’t take my word for it — take Dianne Feinstein’s word. In a letter to the White House, she invoked torture’s status as a “covert action program under the authority of the President and National Security Council” to call for the White House to lead declassification.
In a letter to the President dated April 7 and obtained by McClatchy, Dianne Feinstein, D-Calif., called for swift action on the summary and the findings and conclusions of the report, which members voted last week to declassify. The summary, Feinstein said, should be released “quickly and with minimal redactions.”
“As this report covers a covert action program under the authority of the President and National Security Council, I respectfully request that the White House take the lead in the declassification process,” the letter reads.
Note, Dianne Feinstein has just formally confirmed the same detail the Obama Administration appealed to keep secret: torture was authorized by the President, not by OLC, not by George Tenet, not by John Rizzo. The President.
Which is why the President should take responsibility for releasing the report.