[Photo: National Security Agency, Ft. Meade, MD via Wikimedia]

Jack Goldsmith and Susan Hennessey Run Cover for Those Giving Jeff Sessions Unreviewable Authority to Criminalize Dissent

I’m used to Susan Hennessey partnering with Ben Wittes to write apologies for NSA and FBI that ignore known facts. I’m a bit surprised that Jack Goldsmith did so in this defense of Democrats — like Adam Schiff and Nancy Pelosi and nineteen Democratic Senators — who have voted to give Jeff Sessions unreviewable authority to criminalize dissent using certain privacy tools.

NSA did not fix “abouts” problems before the issues became public

There are numerous problems with this post. The one that irks me the most, however, is the claim that the “system itself” identified and addressed problems with “abouts” collection before they became public.

We acknowledge that the program has raised hard legal questions as well as difficult compliance issues, primarily involving “abouts” collection. But these problems were identified by the system itself, long before the issues became public, and the practices were fixed or terminated.

This claim, one I’ve corrected Hennessey for on numerous occasions on Twitter, is false, and should be retracted.

I say that with great confidence, because I wrote about the problems on August 11, 2016, well before NSA failed to disclose the full extent of the problems in an October 4, 2016 hearing, which led the worst FISC judge ever, Rosemary Collyer, to complain about NSA’s institutional “lack of candor.”

At the October 26, 2016 hearing, the Court ascribed the government’s failure to disclose those IG and OCO reviews at the October 4, 2016 hearing to an institutional “lack of candor” on NSA’s part and emphasized that “this is a very serious Fourth Amendment issue.”

As a reminder, the problem (the FISC has) with “abouts” collection is not so much that it collected entirely domestic communications — that’s the complaint of the rest of us. It’s that NSA never ever complied with John Bates’ 2011 requirement that NSA not conduct back door searches on upstream collection, because it might result in searches of those entirely domestic communications. In my August 2016 post, I noted that reviewers kept discovering that NSA continued to do back door searches on upstream data in violation of that prohibition, and kept refusing to implement technical fixes to avoid them.

I also raised concerns about the oversight of 704/705(b), which is how the NSA first realized how badly non-compliant their upstream searches were, on May 13, 2016, That’s about when NSA first reported to DOJ “in May and June 2016” that “approximately eighty-five percent of” queries using a tool the NSA employs with 704/705b queries “were not compliant with the applicable minimization procedures.”

I’ll grant that I’m remarkably attentive to documents that get declassified years after the fact. But I’m nevertheless “the public.” If I’m identifying these problems — and NSA’s refusal to make the technical fixes to avoid them — before they get fully briefed to DOJ or FISC, then it is absolutely false to claim that “the system” fixed or terminated the problem long before they became public.

Again, Lawfare should issue a retraction for that claim.

Update, January 19: On Twitter yesterday, Hennessey claimed I misread this quote, and that her proof that the system works was that the NSA had gotten away with ignoring Bates’ orders for five years, but finally shut it down before the public learned that NSA had been ignoring FISC’s orders.

This is still factually false — as I responded to her, the NSA was still identifying problems for eight months after I wrote about the problems, even assuming it had found all of them by April 2017, which was the last declassified reporting on it. But her explanation actually makes the comment downright damning for the NSA. It suggests a lawyer who was at NSA during the period it was not in compliance believes that getting away with violating the Fourth Amendment for five years, but fixing it before documents released on a three year delay (and only because of Snowden) is a sign of a law-abiding agency.

A portrait of a guy who doesn’t know key details as a rigorous overseer

The fact that I was harping on the “abouts” problems before any overseers of the program managed to fully investigate and fix them by itself disproves the claims that Hennessey and Goldsmith make in their hagiography of Adam Schiff.

He is the ranking Democrat on the House intelligence committee and one of the most knowledgeable and informed members of Congress on intelligence matters. Schiff has not hesitated to be  when he sees fit. He has watched the 702 program up close over many years in classified settings in his oversight role. He knows well its virtues and its warts. We suppose it is possible that Schiff would vote to give the president, whose integrity he so obviously worries about, vast powers to spy on Americans in an abusive way. Given everything Schiff has publicly said and done over the last year, however, a much more plausible inference is that he knows not only how valuable the 702 program is but also how law-constrained and carefully controlled and monitored it is.

Plus, I’m not sure why they think that Schiff’s attempt to fix the Section 215 phone dragnet only after Edward Snowden made it public proves that Schiff “never hesitated to be critical of intelligence community practices.” On the contrary, it proves that he did hesitate to do so before excessive programs became public.

The distinction is utterly critical given something I’ve pointed out about this bill. The bill itself is an admission that the intelligence community is out of control, and that congressional overseers can’t get information they need to adequately oversee the program without demanding it in legislation. That’s because it requires the IC to provide information on two practices that Congress cannot be deemed competent to legislate on without having answers about first.

For example, the bill requires an IG Report on how FBI queries raw data.

(b) MATTERS INCLUDED.—The report under subsection (a) shall include, at a minimum, an assessment of the following:

(1) The interpretations by the Federal Bureau of Investigation and the National Security Division of the Department of Justice, respectively, relating to the querying procedures adopted under subsection (f) of section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a(f)), as added by section 101.


(6) The scope of access by the criminal division of the Federal Bureau of Investigation to information obtained pursuant to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), including with respect to information acquired under subsection (a) of such section 702 based on queries conducted by the criminal division.

(7) The frequency and nature of the reviews conducted by the National Security Division of the Department of Justice and the Office of the Director of National Intelligence relating to the compliance by the Federal Bureau of Investigation with such querying procedures.

I have explained (and I know Hennessey regards this as a problem too) that since 2012, FBI has devolved its access to raw 702 data to field offices. The FBI already conducted far, far less oversight of the back door searches it conducts than NSA does. But because the DOJ/DNI 702 review teams visit only a fraction of the FBI field offices with each review, and because FBI’s querying system doesn’t collect enough information to do oversight remotely, it is possible that the offices that are least familiar with 702 requirements are — for the smaller number of 702 queries they conduct — getting the least oversight.

You can’t pass a bill that effectively blesses FBI’s use of back door searches on Americans about whom it has no evidence of any wrongdoing, while admitting you don’t know how FBI conducts those back door searches, and make any claim to conduct adequate oversight. Rather, the bill permits FBI to continue practices it has stubbornly refused to brief Congress on, rather than demanding that FBI brief Congress first, so Congress can impose any restrictions that might be necessary to adequately protect Americans.

The bill also requires a briefing within six months to explain how DOJ complies with FISA’s legally mandated notice requirements (because notice under 702 is treated as notice under 106(c), this covers 702 surveillance as well).

Not later than 180 days after the date of the enactment of this Act, the Attorney General, in consultation with the Director of National Intelligence, shall provide to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select 10 Committee on Intelligence of the Senate a briefing with respect to how the Department of Justice interprets the requirements under sections 106(c), 305(d), and 405(c) of the Foreign Intelligence Surveillance Act of 1978 (50 14 U.S.C. 1806(c), 1825(d), and 1845(c)) to notify an aggrieved person under such sections of the use of information obtained or derived from electronic surveillance, physical search, or the use of a pen register or trap and trace device. The briefing shall focus on how the Department interprets the phrase ‘‘obtained or derived from’’ in such sections.

The public treatment of DOJ’s serial, obvious failures to give notice to defendants is a nifty trick. When DOJ fails to give notice, it clearly violates the law, but notice is not included in minimization procedure review, so therefore is not reviewed by the FISC. When surveillance boosters like Hennessey and Goldsmith say there have never been any willful violations of the law, they manage to ignore the notice violations that have allowed some pretty problematic practices to avoid judicial oversight only because by breaking the law DOJ ensures no court will find them to be breaking the law.

Catch 22: Heads legal violations never get reviewed by a court, tails surveillance boosters can claim the surveillance has a clean bill of health.

Again, this is a known, egregious problem with the implementation of 702.

But rather than do the obvious thing as part of what this post dubs “robust democratic deliberation,” which is to demand answers about how notice is (not) given and require DOJ to fix it as part of the bill, the bill instead simply requires DOJ to provide the information that Congress needs to do basic oversight six months after reauthorization, which effectively punts fixing the problem six years down the road.

How many Chinese-American scientists will be improperly prosecuted because FBI is technically inane in those 6 years, because a bunch of California legislators like Nancy Pelosi, Adam Schiff, and Dianne Feinstein chose to punt on basic oversight?

The most egregious example of this, however, involves the government’s obstinate refusal to explain how many US persons are affected by 702. This bill also did not incorporate an HJC proposal requiring a count of how many Americans got referred for criminal prosecution off of 702 collection.

Letting Jeff Sessions criminalize dissent

That refusal — the refusal to even legislatively require the government to report on the impact of 702 surveillance on Americans, via incidental collection and/or criminal referral — brings us to the problem with this bill that opponents are all raising, but about which Hennessey and Goldsmith are inexcusably silent: the codification of giving Jeff Sessions unreviewable authority to determine what counts as a “criminal proceeding [that] affects, involves, or is related to the national security of the United States.”

Here’s how Hennessey and Goldsmith describe the impact of this program on Americans.

As Lawfare readers know, Section 702 authorizes the intelligence community to target the communications of non-U.S. persons located outside the United States for foreign intelligence purposes. It does not permit the intelligence community to target a U.S. person anywhere in the world. But it does permit incidental collection on U.S. persons, subject to strict rules about minimization and use.

Their silence about how the bill doesn’t deal with back door searches is problematic enough.

But they predictably, but problematically, make no mention of the way the bill codifies the use of 702 in domestic law enforcement under the Tor/VPN exception.

As I have laid out, in 2014 FISC created an exception to the rule that NSA must detask from a facility as soon as they learn that Americans are also using that facility. That exception applies to Tor and (though I understand this part even less) VPN servers — basically the kinds of privacy tools that criminals, spies, journalists, and dissidents might use to hide their online activities. NSA has to sort through what they collect on the back end, but along the way, they get to decide to keep any entirely domestic traffic they find has significant foreign intelligence purpose or is evidence of a crime, among other reasons. The bill even codifies 8 enumerated crimes under which they can keep such data. Some of those crimes — child porn and murder — make sense, but others — like transnational crime (including local drug dealers selling imported drugs) and CFAA (with its well-known propensity for abuse) pose more potential for abuse.

But it’s the unreviewable authority for Jeff Sessions bit that is the real problem.

We know, for example, that painting Black Lives Matter as a national security threat is key to the Trump-Sessions effort to criminalize race. We also know that Trump has accused his opponents of treason, all for making critical comments about Trump.

This bill gives Sessions unreviewable authority to decide that a BLM protest organized using or whistleblowing relying on Tor, discovered by collection done in the name of hunting Russian spies, can be referred for prosecution. The fact that the underlying data predicating any prosecution was obtained without a warrant under 702 would — in part because this bill doesn’t add teeth to FISA notice — ensure that courts would never learn the genesis of the prosecution. Even if a court somehow managed to do so, however, it could never deem the domestic surveillance unlawful because the bill gives Jeff Sessions the unreviewable authority to treat dissent as a national security threat.

This is such an obviously bad idea, and it is being supported by people who talk incessantly about the threat that Trump and Sessions present. Yet, rather than addressing the issue head on (which I doubt Hennessey could legally do in any case), they simply remain silent about what is the biggest complaint from privacy activists, that this gives a racist, vindictive Attorney General far more authority than he should have, and does so without fixing the inadequate protections for criminal defendants along the way.

I mean, I get that surveillance boosters who recognize the threat Trump and Sessions pose want to absolve themselves for giving Trump tools that can so obviously be abused.

But this attempt does so precisely by dodging the most obvious reasons for which boosters should be held to account.

Update: Changed post to note that just Trump has accused FBI Agents of treason, not Sessions, and not (yet) journalists.

Update: Here’s the roll call of the 65-34 vote passage of the bill. Democrats who voted in favor are:

  1. Carper
  2. Casey
  3. Cortez Masto
  4. Donnelly
  5. Duckworth
  6. Feinstein
  7. Hassan
  8. Heitkamp
  9. Jones
  10. Klobuchar
  11. Manchin
  12. McCaskill
  13. Nelson
  14. Peters
  15. Reed
  16. Schumer
  17. Shaheen
  18. Stabenow
  19. Warner
  20. Whitehouse


The 702 Capitulations: a Real Measure of the “Deep State”

There were two details of the Section 702 reauthorization in the House that deserve more attention, as the Senate prepares for a cloture vote today at 5:30.

First, in the Rules Committee hearing for the bill, Ranking House Judiciary Committee member Jerry Nadler revealed that the FBI stopped engaging with his staffers when the two sides reached a point on negotiations over the bill beyond which they refused to budge.

Effectively, FBI just used the dual HJC/House Intelligence jurisdiction over FISA to avoid engaging in the legislative process, to avoid making any concessions to representatives supposedly overseeing this program.

As a result, the final bill included only a sham warrant requirement — one that will give criminal suspects more protection against warrantless search than it gives people against whom the FBI has no suspicion — and provided an easy way for the NSA to turn “about” collection (which has been the source of repeated NSA violations of FISA over the years) back on.

Then there was the effort Nancy Pelosi made to use the President’s reactive FISA tweet to impose a few more limits on the warrant requirement. In a filibustering speech, she suggested that Trump’s tweet claiming his had been surveilled and abused under the law (in reality, Title I warrants were used during the campaign, but Section 702 has likely been part of the investigation as well) necessitated a motion to recommit instructing HPSCI to boost the protections for Americans.

Pelosi had to have know the motion would fail (it did, with just six of the most libertarian Republicans joining Democrats in support). She counts votes better than anyone.

What the vote was really about was an effort not to fix the real problems with the bill. Nor was it a meaningful effort to add anything but illusory protections to the bill. It was an effort to make a vote in support of the bill more politically palatable. Pelosi (and Adam Schiff, who worked closely with Pelosi on this front) appears to have known that there will be political costs for supporting this bill, perhaps especially in San Francisco where one-fifth of Pelosi’s constituents are Chinese-American, one of the groups most disproportionately affected by the spying program.

She knew she was going to have to vote for the bill, political cost and all, and was trying to use Trump’s tweet to minimize the costs of doing so.

These two events, in my opinion, show how dysfunctional legislation affecting the “Deep State,” the entrenched national security bureaucracy, is. There is a clear political recognition among the Democratic leaders cooperating in passing the bill that the bill goes too far. Probably, they worry about what will happen when we learn how Jeff Sessions will use the unreviewable authority to deem either warrantless back door searches for Americans’ names or retention of Tor and VPN domestic collection a “national security” issue to target Democratic constituencies.

But that recognition was not enough to muster the political will to oppose the bill.

Heads the “Deep State” wins, tails democratic oversight fails.

The Embarrass Mitch McConnell Provision of the Intel Authorization

I’ve got a piece coming out on all the Russian-related provisions in the Intelligence Authorization bill for next year, which are for the most part really laudable policy proposals. But I wanted to look more closely at this one.

(a) Report Required.—Not later than 60 days after the date of the enactment of this Act, the Under Secretary of Homeland Security for Intelligence and Analysis shall submit to congressional leadership and the congressional intelligence committees a report on cyber attacks and attempted cyber attacks by foreign governments on United States election infrastructure in States and localities in connection with the 2016 presidential election in the United States and such cyber attacks or attempted cyber attacks as the Under Secretary anticipates against such infrastructure. Such report shall identify the States and localities affected and shall include cyber attacks and attempted cyber attacks against voter registration databases, voting machines, voting-related computer networks, and the networks of secretaries of State and other election officials.

(b) Form.—The report submitted under subsection (a) shall be submitted in unclassified form, but may include a classified annex.

(c) Definitions.—In this section:

(1) CONGRESSIONAL LEADERSHIP.—The term “congressional leadership” includes the following:

(A) The majority leader of the Senate.

(B) The minority leader of the Senate.

(C) The Speaker of the House of Representatives.

(D) The minority leader of the House of Representatives.

(2) STATE.—The term “State” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.

It requires the Department of Homeland Security to submit an unclassified report on all the hacking attempts on election infrastructure last year. It will involve declassifying information that Reality Winner is facing prison time for liberating, which seems like a concession that such information has public value. 

But I’m particularly interested in the emphasis on the distribution of this report: both to the intelligence committees and to Congressional leadership, spelled out by job title. Mitch McConnell, Chuck Schumer, Paul Ryan, and Nancy Pelosi.

That’s interesting because — as part of their investigation into last year’s hack — the Senate Intelligence Committee has already been briefed on this information. Indeed, the day after that testimony, Bloomberg reported — relying on three sources briefed on the investigation — that the hacks were much more severe than publicly known.

Russia’s cyberattack on the U.S. electoral system before Donald Trump’s election was far more widespread than has been publicly revealed, including incursions into voter databases and software systems in almost twice as many states as previously reported.

In Illinois, investigators found evidence that cyber intruders tried to delete or alter voter data. The hackers accessed software designed to be used by poll workers on Election Day, and in at least one state accessed a campaign finance database. Details of the wave of attacks, in the summer and fall of 2016, were provided by three people with direct knowledge of the U.S. investigation into the matter. In all, the Russian hackers hit systems in a total of 39 states, one of them said.

So ultimately, if this bill becomes law, it will require an unclassified report on stuff SSCI has been getting briefing on to be submitted to both SSCI and Congressional leadership.

The move comes in the wake of complaints from Democrats that Mitch McConnell refused to back a stronger statement about such attempted attacks in fall 2016. Now, I think some of the complaints about McConnell’s inaction last year are overblown, a demand that McConnell get ahead of where the Intelligence Community was willing to go publicly. And I think they largely obscure the more pressing question of what Trump advisors Devin Nunes and Richard Burr did. 

But I am cognizant of the fact that in a matter of months, we may get a better sense of the kinds of threats to our voting system that McConnell fought against publicizing.

The 28 Pages

On Sunday, President Obama said this about about Hillary’s email scandal: “There’s classified & then there’s classified.”

Perhaps that’s what has led him to decide, after 15 years, the 28 pages on the Saudis’ role in 9/11 can finally be released (or at least reviewed for declassification; given the way the 60 Minutes script ignored evidence about Bandar bin Sultan, I suspect they’ll still protect him).

The ostensible precipitating factor was a 60 Minutes show that, as I understand, didn’t expose anything we haven’t known for a decade (for comparison see this declaration Bob Graham submitted last year in a suit against the Saudis). But given the way 60 Minutes have become a house organ for the Intelligence Community, and given the way Nancy Pelosi had a statement (emphasizing her long role in Intelligence oversight, such as it exists) endorsing the disclosure all ready to go,

“As the former Ranking Democrat on the House Intelligence Committee and top the House Democrat on the Joint Congressional investigation looking into the 9/11 attacks, I agree with former Senator Bob Graham that these documents should be declassified and made public, and that the Bush Administration’s refusal to do so was a mistake,” Pelosi said in a statement. “I have always advocated for providing as much transparency as possible to the American people consistent with protecting our national security.”

I gotta believe this was all orchestrated.

After pretending the Saudis have been good faith partners for 15 years, in spite of abundant evidence evidence they have always continued to support terrorism as a tool in their bid for power, it seems, the Intelligence Committee has finally decided it was convenient to be able to discuss the Saudi role in 9/11.

Mind you, if the IC was really serious about discussing what bad partners the Saudis have always been, they should also declassify the other abundant evidence that the Saudis have been playing two sides with us.

But that would discomfort a good many Americans, I suspect.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Danger of Someone Criticizing Political Pork Landing on the Capitol Lawn

The WaPo has a good review of how postal service worker Doug Hughes managed to fly his gyrocopter onto the Capitol lawn without being spotted by the Secret Service or other security forces.

But the best part of the story cites corporate sucklings Chuck Schumer and Ron Johnson expressing dismay that the security theater draping DC didn’t prevent Hughes from landing a harmless aircraft on their lawn.

On Capitol Hill, there was less concern Thursday about Hughes’s message than how he delivered it — flying into the heart of the nation’s capital and alighting on the Capitol lawn about 1:30 p.m. in what amounts to an airborne go-cart, powered by something like a lawn mower engine, and kept aloft by an overhead rotor and a small propeller.

“How did it happen?” Sen. Charles E. Schumer (D-N.Y.) wondered aloud. “How did the helicopter get through? Why weren’t there alarm bells that went off? Why wasn’t it intercepted? Did we know about it? How far from the Capitol grounds did we know?”

Schumer, the Senate’s third-ranking Democrat, added: “Just saying it’s a little helicopter, or it’s one person, or it was harmless, does not answer these questions. And we need to know what happened.”

Sen. Ron Johnson (R-Wis.), chairman of the Homeland Security and Governmental Affairs Committee, said in a statement: “I am deeply concerned that someone has the ability to fly for over an hour through the most restricted airspace in our country, past the White House, and land on the lawn of the Capitol.”

He added that he wants “a full accounting by all federal organizations entrusted with securing the United States from this and similar events.” That Hughes was able to pull off the stunt, Johnson said, is “a reminder that the risk to America and Americans is ever present.”

As Nancy Pelosi noted in comments yesterday (which were almost, but not quite, this shrill), there are reasons to want the Capitol to remain fairly open. And it is fairly open — easier to get into than an airport, for example. That makes it accessible to the thousands of local lobbying and school groups who want to see their Representatives’ office.

But it also makes it permeable by lobbyists.

The big money lobbyists, of course, do far more damage to this country than a gyrocopter ever could, damage that Schumer and Johnson are enthusiastic participants in.

Which is sort of Hughes’ point.

I expect more ironic symbolism from this event going forward, as a bunch of security-industry intoxicated Congressmen take as a lesson from this that they need to insulate themselves even more from the people warning about them insulating themselves form their constituents.

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

The Torture Report revealed what it was.

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

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

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

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

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

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

Shorter GOP Intelligence: “Oversight’s Out for Summer!”

I’m just now getting around to the GOP rebuttal to the Senate Report. While it does raise a few decent points, it engages in a whole slew of the kind of word games the Bush Administration used to hide torture in the first place (I honestly would love to read a serious study of this whole project as an epistemological exercise).

Thus far, however, I most adore this paragraph on Congressional oversight.

The Study claims, “[t]he CIA did not brief the Senate Intelligence Committee leadership on the CIA’s enhanced interrogation techniques until September 2002, after the techniques had been approved and used.”88 We found that the CIA provided information to the Committee in hearings, briefings, and notifications beginning shortly after the signing of the Memorandum of Notification (MON) on September 17, 2001. The Study’s own review of the CIA’s representations to Congress cites CIA hearing testimony from November 7, 2001, discussing the uncertainty in the boundaries on interrogation techniques.89 The Study also cites additional discussions between staff and CIA lawyers in February 2002.90 The Study seems to fault the CIA for not briefing the Committee leadership until after the enhanced interrogation techniques had been approved and used. However, the use of DOJ-approved enhanced interrogation techniques began during the congressional recess period in August, an important fact that the Study conveniently omitted.92 The CIA briefed HPSCI leadership on September4, 2002. SSCI leadership received the same briefing on September 27, 2002.93

I am somewhat sympathetic to the first claim. As it notes, at a briefing for what appears to be the Senators (as opposed to staff) on November 7, 2001, Deputy Director of Operations said something that should have set off alarm bells.

Deputy Director of Operations (DDO) James Pavitt assured the Committee that it would be informed of each individual who entered CIA custody. Pavitt disavowed the use of torture against detainees while stating that the boundaries on the use of interrogation techniques were uncertain—specifically in the case of having to identify the location of a hidden nuclear weapon.2447

2447 “We’re not going to engage in torture. But, that said, how do I deal with somebody I know may know right now that there is a nuclear weapon somewhere in the United States that is going to be detonated tomorrow, and I’ve got the guy who I know built it and hid it? I don’t know the answer to that.” (See transcript of Senate Select Committee on Intelligence MON briefing, November 7, 2001 (DTS #2002-0611);


Pavitt effectively said, just as the government started to round up people like Ibn Sheikh al-Libi in Afghanistan, “we’re not going to torture but then again maybe we will.” And while it is crystal clear he failed to meet the terms he laid out — Congress was not informed about each detainee, there was never a detainee in custody who had set a nuclear bomb nor even a ticking time bomb scenario, much less Abu Zubaydah, who was put on ice for over a month before the worst of the torture — his contemplation of using torture in case of a ticking time bomb should have been the moment for Congress to say, “Whoa! Stop!”

There’s no reason to believe the February briefing discussed the torture.

Which brings us to the September briefings.

Now, first of all, elsewhere in their rebuttal, the GOP note that Abu Zubaydah was subjected to torture in April (largely, but not entirely, sleep deprivation). They make much — some of it justified — of the Report for not dealing with this as torture. But here, they adopt the same approach the Report did and ignore that torture and point out that the DOJ-approved torture (that is, the torture that had some authorization beyond the Memorandum of Notification, rather than the torture that relied exclusively on it) started during Congressional recess, so whatever was the poor CIA to do about Richard Shelby and Bob Graham being on vacation? (FWIW, Graham remained actively involved in the Joint Inquiry into 9/11 during that period; it’s when he first started getting incensed about Saudi Arabia’s role in the attack.)

Schools out for summer!

Except it wasn’t out.

Screen shot 2014-12-17 at 7.47.21 PM

As the official schedule from the period makes clear, the Senate met (marked by strike-through) on August 1, the day the torture memos were signed. Under the National Security Act, the Gang of Four, at least, are supposed to be briefed before a covert op. Clearly the Executive knew enough about what they planned to do with Abu Zubaydah on August 1 to be able to brief it before they started on August 4. (In case you’re wondering, the Senate was also in session in April to be briefed.)

I am, however, rather interested that the GOP is adopting the argument that CIA had to wait until September to roll out a new product, just as Andy Card was doing with the Iraq War at that same time. Especially given the way both Nancy Pelosi and Bob Graham have noted that the Executive was lying about both in that same period.

Finally, there’s the final claim — that Bob Graham and Richard Shelby got the same briefing that Nancy Pelosi and Porter Goss did. The claim commits another of the crimes the rebuttal accuses the Report of — insisting you can’t find out what happened at a briefing without interviewing the participants, which the GOP did no more than the SSCI staffers did.

But from the available evidence, we can be pretty sure Graham and Shelby did not get the same briefing that Pelosi and Goss did.

As I’ve laid out, someone(s) in the Pelosi and Goss briefing noted that the torture described in the briefing — which CIA had already done, though they didn’t tell Pelosi and Goss that — would be illegal in another country. The next day, CIA ramped up discussions of destroying the torture tapes that depicted that illegal torture. The next, Jose Rodriguez and a lawyer altered their record of the briefing to take out that reference to illegality. And, for some reason, the Graham and Shelby briefing, which had been scheduled for September 9, got postponed until the end of the month. Rodriguez did not attend the SSCI briefing, as he had the HPSCI one. And it appears to have been held in less secure space.

And while I’ve only interviewed half the people who attended those briefings, there does seem to be abundant evidence they were different. Not only that they were different, but different because of the reaction someone in the HPSCI briefing had.

Whatever. I guess it’s nice to know that departing Vice Chair Saxby Chambliss and rising Chair Richard Burr both think the CIA should get none of the oversight legally required during recess.

Jose Rodriguez & CIA Lawyer Removed Sentence about Torture Illegality from Pelosi, Goss Briefing Record

Over four years ago, I wrote a post noting how, in the two days after Jose Rodriguez and one of his Counterterrorism Lawyers briefed Nancy Pelosi and Porter Goss in September 2002 they might use torture prospectively, they 1) moved closer to deciding to destroy the torture tapes and 2) altered their initial record of the briefing to take out one sentence.

As I pointed out in the comments to this thread, someone (I’ll show in my new weedy post why it might be then-Counterterrorism Center Legal Counsel Jonathan Fredman) changed the initial description of the briefing that Jose Rodriguez and two others (I believe Fredman was one of the two) gave to Porter Goss and Nancy Pelosi on September 4, 2002. To see the documents showing discussing the alteration (but not the content of it), see PDF 84 of this set and PDF 11-12 of this set.

That’s suspicious enough. But as the email discussions of destroying the torture tape show (see PDF 3), the briefing and the alteration to the briefing record happened the day before and the day after–respectively–the day “HQS elements” started talking seriously about destroying the torture tapes.

On 05 September 2002, HQS elements discussed the disposition of the videotapes documenting interrogation sessions with ((Abu Zubaydah)) that are currently being stored at [redacted] with particular consideration to the matters described in Ref A Paras 2 and 3 and Ref B para 4. As reflected in Refs, the retention of these tapes, which is not/not required by law, represents a serious security risk for [redacted] officers recorded on them, and for all [redacted] officers present and participating in [redacted] operations.


Accordingly, the participants determined that the best alternative to eliminate those security and additional risks is to destroy these tapes [redacted]

So here’s what this looks like in timeline form:

September 4, 2002: Jose Rodriguez, C/CTC/LGL (probably Fredman) and a CTC Records officer brief Porter Goss and Nancy Pelosi on Abu Zubaydah’s treatment. According to both Goss and Pelosi, CIA briefs them on torture techniques, but implies they are hypothetical techniques that might be used in the future, not the past.

September 5, 2002: Unnamed people at CIA HQ discuss destroying the torture tapes, ostensibly because of danger to CIA officers conducting the torture.

September 6, 2002: Someone (possibly Jonathan Fredman or someone else in CTC’s Legal department) alters the initial description of the Goss-Pelosi briefing, eliminating one sentence of it. “Short and sweet” Rodriguez responded to the proposed change.

September 9, 2002: CIA records show a scheduled briefing for Bob Graham and Richard Shelby to cover the same materials as briefed in the Goss-Pelosi briefing. The September 9 briefing never happened; Graham and Shelby were eventually briefed on September 27, 2002 (though not by Rodriguez personally).

September 10, 2002: The altered description of the briefing is sent internally for CTC records. This briefing is never finalized by Office of Congressional Affairs head Stan Moskowitz into a formal Memorandum for the Record.

Or, to put it more plainly, they briefed Pelosi, decided they wanted to destroy the torture tapes (there’s no record Pelosi was told about the tapes), and then tweaked the record about what they had said to Pelosi.

The Torture Report backs my analysis (though doesn’t include the details about the torture tapes or that both Pelosi and Goss said they had been briefed the torture would be used prospectively; see here for backing of the claim this was a prospective briefing). But it adds one more detail.

The sentence Jose Rodriguez and his lawyer eliminated — the day after folks at CIA discussed destroying the torture tapes showing they had already used this torture — recorded that one or both of Pelosi and Goss noted that these techniques would be illegal in another country.

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

At least one of these members of Congress (or their staffers) got briefed on torture and said the torture would be illegal if other countries used it, according to CIA’s own records. So CTC’s lawyer eliminated that comment from the CIA’s record, with Jose Rodriguez’ gleeful approval.

And yet he says Congress approved of these techniques from the start.

Some Torture Facts

At the request of some on Twitter, I’m bringing together a Twitter rant of some facts on torture here.

1) Contrary to popular belief, torture was not authorized primarily by the OLC memos John Yoo wrote. It was first authorized by the September 17, 2001 Memorandum of Notification (that is, a Presidential Finding) crafted by Cofer Black. See details on the structure and intent of that Finding here. While the Intelligence Committees were briefed on that Finding, even Gang of Four members were not told that the Finding authorized torture or that the torture had been authorized by that Finding until 2004.

2) That means torture was authorized by the same Finding that authorized drone killing, heavily subsidizing the intelligence services of countries like Jordan and Egypt, cooperating with Syria and Libya, and the training of Afghan special forces (the last detail is part of why David Passaro wanted the Finding for his defense against abuse charges — because he had been directly authorized to kill terror suspects by the President as part of his role in training Afghan special forces).

3) Torture started by proxy (though with Americans present) at least as early as February 2002 and first-hand by April 2002, months before the August 2002 memos. During this period, the torturers were operating with close White House involvement.

4) Something happened — probably Ali Soufan’s concerns about seeing a coffin to be used with Abu Zubaydah — that led CIA to ask for more formal legal protection, which is why they got the OLC memos. CIA asked for, but never got approved, the mock burial that may have elicited their concern.

5) According to the OPR report, when CIA wrote up its own internal guidance, it did not rely on the August 1, 2002 techniques memo, but rather a July 13, 2002 fax that John Yoo had written that was more vague, which also happened to be written on the day Michael Chertoff refused to give advance declination on torture prosecutions.

6) Even after CIA got the August 1, 2002 memo, they did not adhere to it. When they got into trouble — such as when they froze Gul Rahman to death after hosing him down — they went to John Yoo and had him freelance another document, the Legal Principles, which pretend-authorized these techniques. Jack Goldsmith would later deem those Principles not an OLC product.

7) During both the August 1, 2002 and May 2005 OLC memo writing processes, CIA lied to DOJ (or provided false documentation) about what they had done and when they had done it. This was done, in part, to authorize the things Yoo had pretend-authorized in the Legal Principles.

8) In late 2002, then SSCI Chair Bob Graham made initial efforts to conduct oversight over torture (asking, for example, to send a staffer to observe interrogations). CIA got Pat Roberts, who became Chair in 2003, to quash these efforts, though even he claims CIA lied about how he did so.

9) CIA also lied, for years, to Congress. Here are some details of the lies told before 2004. Even after CIA briefed Congress in 2006, they kept lying. Here is Michael Hayden lying to Congress in 2007

10) We do know that some people in the White House were not fully briefed (and probably provided misleading information, particularly as to what CIA got from torture). But we also know that CIA withheld and/or stole back documents implicating the White House. So while it is true that CIA lied to the White House, it is also true that SSCI will not present the full extent of White House (read, David Addington’s) personal, sometimes daily, involvement in the torture.

11) The torturers are absolutely right to be pissed that these documents were withheld, basically hanging them out to dry while protecting Bush, Cheney, and Addington (and people like Tim Flanigan).

12) Obama’s role in covering up the Bush White House’s role in torture has received far too little attention. But Obama’s White House actually successfully intervened to reverse Judge Alvin Hellerstein’s attempt to release to ACLU a short phrase making it clear torture was done pursuant to a Presidential Finding. So while Obama was happy to have CIA’s role in torture exposed, he went to great lengths, both with that FOIA, with criminal discovery, and with the Torture Report, to hide how deeply implicated the Office of the President was in torture.

Bonus 13) John Brennan has admitted to using information from the torture program in declarations he wrote for the FISA Court. This means that information derived from torture was used to scare Colleen Kollar-Kotelly into approving the Internet dragnet in 2004.