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The Folks Who Picked the Stupid Seven Banned Countries Say the Muslim Ban Is Stupid

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Buried in a declaration written by a bunch of former national security officials in the Washington v Trump suit opposing Trump’s Muslim ban is this passage:

Because various threat streams are constantly mutating, as government officials, we sought continually to improve that vetting, as was done in response to particular threats identified by U.S. intelligence in 2011 and 2015. Placing additional restrictions on individuals from certain countries in the visa waiver program –as has been done on occasion in the past – merely allows for more individualized vettings before individuals with particular passports are permitted to travel to the United States.

These officials, which include (among others) former Deputy CIA Director Avril Haines, former Secretary of State John Kerry, former Homeland Security Czar Lisa Monaco, and former National Security Advisor Susan Rice argue that the practice is to tweak immigration rules based on changing threat patterns rather than impose broad bans not driven by necessity and logic. They argue that additional restrictions imposed on certain immigrants in 2015 were “in response to particular threats identified by U.S. intelligence.”

That’s really interesting because the 2015 change they reference is the basis of the Trump list that excludes countries that are real threats and includes others (especially Iran) that are not. Here’s how CNN describes the genesis of the seven countries covered by Trump’s ban.

In December 2015, President Obama signed into law a measure placing limited restrictions on certain travelers who had visited Iran, Iraq, Sudan, or Syria on or after March 1, 2011. Two months later, the Obama administration added Libya, Somalia, and Yemen to the list, in what it called an effort to address “the growing threat from foreign terrorist fighters.

The restrictions specifically limited what is known as visa-waiver travel by those who had visited one of the seven countries within the specified time period. People who previously could have entered the United States without a visa were instead required to apply for one if they had traveled to one of the seven countries.

Under the law, dual citizens of visa-waiver countries and Iran, Iraq, Sudan, or Syria could no longer travel to the U.S. without a visa. Dual citizens of Libya, Somalia, and Yemen could, however, still use the visa-waiver program if they hadn’t traveled to any of the seven countries after March 2011.

Now, Haines, Kerry, Monaco, and Rice might be excused for opposing Trump’s ban on seven poorly picked countries that themselves had a hand in picking. After all, the changes derived from bills presented by Republicans, Candace Miller and Ron Johnson, which got passed as part of the Omnibus in 2015. Obama can’t be expected to veto the entire spending bill because some Republicans wanted to make life harder on some immigrants.

Except that, as far as I understand, the Obama Administration extended the restrictions from the original law, which pertained only to people from or who had traveled to Syria and Iraq, to Iran and Sudan. And then (as CNN notes) they extended it again to three other countries, Libya, Somalia, and Yemen (notably, all countries we destabilized).

So it’s partly the fault of Haines, Kerry, Monaco, and Rice that Iran, which hasn’t targeted the US in real terrorism for decades, is on the list. It’s partly the fault of Haines, Kerry, Monaco, and Rice that countries with actual ties to terrorists who have attacked inside the US — most notably Saudi Arabia and Pakistan — are not on the list.

I have no doubt that the argument presented in the declaration (which was also signed by a bunch of people who weren’t part of Obama’s second term national security team) is right: Trump’s Muslim ban is badly conceived and makes us less safe. But one reason they likely know that is because their own visa restrictions were badly conceived and did little to make us more safe.

Trump is pursuing a lot of stupid policies. But we should remain honest that they largely build on stupid policies of those who came before.

Update: Corrected that this is not an amicus, but a declaration submitted with state opposition.

The Costs of Politically Free Cybersecurity Failures

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Ben Wittes looks at the WaPo article and accompanying National Security Council Draft Options paper on how the White House should respond to FBI’s campaign against encryption and declares that “Industry has already won.”

[T]he document lays out three options for the administration—three options that notably do not include seeking legislation on encryption.

They are:

  • “Option 1: Disavow Legislation and Other Compulsory Actions”;
  • “Option 2: Defer on Legislation and Other Compulsory Actions”; and
  • “Option 3: Remain Undecided on Legislation or Other Compulsory Actions.”

In all honesty, it probably doesn’t matter all that much which of these options Obama chooses. If these are the choices on the table, industry has already won.

What’s most fascinating about the white paper is that it lays bare how the NSC itself sees this issue — and they don’t see it like Wittes does, nor in the way the majority of people clamoring for back doors have presented it. As the NSC defines the issue, this is not “industry” versus law enforcement. For each assessed scenario, NSC measures the impact on:

  • Public safety and national security
  • Cybersecurity
  • Economic competitiveness
  • Civil liberties and human rights

Arguably, there’s a fifth category for each scenario — foreign relations — that shows up in analysis of reaction by stakeholders that weighs the interests of foreign governments, including allies that want back doors (UK, France, Netherlands), allies that don’t (Germany and Estonia), and adversaries like Russia and China that want back doors to enable repression (and, surely, law enforcement, but the analysis doesn’t consider this).

That, then, is the real network of interests on this issue and not — as Wittes, Sheldon Whitehouse, and many though not all defenders of back doors have caricatured — simply hippies and Apple versus Those Who Keep Us Safe.

NSC not only judges the market demand for encryption — and foreign insistence that US products not appear to be captive to America’s national security state — to be real, but recognizes that those demands underlie US economic competitiveness generally.

And, as a number of people point out, the NSC readily admits that encryption helps cybersecurity. As the white paper explains,

Pro-encryption statements from the government could also encourage broader use of encryption, which would also benefit global cybersecurity. Further, because any new access point to encrypted data increases risk, eschewing mandated technical changes ensures the greatest technical security. At the same time, the increased use of encryption could stymie law enforcement’s ability to investigate and prosecute cybercriminals, though the extent of this threat over any other option is unclear as sophisticated criminals will use inaccessible encryption.

Shorter the NSC: If encryption is outlawed, only the sophisticated cyber-outlaws will have encryption.

This is the discussion we have not been having, as Jim Comey repeatedly talks in terms of Bad Guys and Good Guys, the complex trade-offs that are far more than “safety versus privacy.”

What’s stunning, however, is that NSC — an NSC that was already in the thick of responding to the OPM hack when this paper was drafted in July — sees cybersecurity as a separate category from public safety and national security. Since 2013, the Intelligence Community has judged that cybersecurity is a bigger threat than terrorism (though I’m not sure if the IC has revised that priority given ISIS’ rise). Yet the NSC still thinks of this as a separate issue from public safety and national security (to say nothing of the fact that NSC doesn’t consider the crime that encryption would prevent, such as smart phone theft).

I’m not surprised that NSC considers these different categories, mind you. Cybersecurity failures are still considered (with the sole exception of Katherine Archuleta, who was forced to resign as OPM head after the hack) politically free, such that men like John Brennan (when he was Homeland Security Czar on NSC) and Keith Alexander can have, by their own admission, completely failed to keep us safe from cyberattack without being considered failures themselves (and without it impacting Brennan’s perceived fitness to be CIA Director).

The political free ride cybersecurity failures get is a problem given the other reason that Wittes’ claim that “industry has already won” is wrong. WaPo reports that NSC still hasn’t come up with a preferred plan, ostensibly because it is so busy with other things.

Some White House aides had hoped to have a report on the issue to give to the president months ago. But “the complexity of this issue really makes it a very challenging area to arrive at any sort of policy on,” the senior official said. A Cabinet meeting to be chaired by National Security Adviser Susan Rice, ostensibly to make a decision, initially was scheduled for Wednesday, but it has been postponed.

The senior official said that the delays are due primarily to scheduling issues — “there are a lot of other things going on in the world” — that are pressing on officials’ time.

But WaPo also presents evidence that those who want back doors are just playing for time, until some kidnapping or terrorist attack investigation gets thwarted by encryption.

Although “the legislative environment is very hostile today,” the intelligence community’s top lawyer, Robert S. Litt, said to colleagues in an August e-mail, which was obtained by The Post, “it could turn in the event of a terrorist attack or criminal event where strong encryption can be shown to have hindered law enforcement.”

There is value, he said, in “keeping our options open for such a situation.”

So long as the final decision never gets made, those who want back doors will be waiting for the moment when some event changes the calculus that currently weighs in favor of encryption. And, of course, we’ll all be relying on people like Jim Comey to explain why encryption made it impossible to catch a “bad guy,” which means the measure will probably ignore the other ways law enforcement can get information.

We are still living in Dick Cheney’s world, where missing a terrorist attack (other than the big one or the anthrax attack) is assumed to be career ending, even while failing to address other threats to the US (climate change and increasingly cybersecurity) are not. So long as that’s true, those waiting to use the next spectacular failure to make ill-considered decisions about back doors will await their day, putting some kinds of national security above others.

Update: Like me, Susan Landau thinks Wittes misunderstood what the White Paper said about who “won” this fight.

But the National Security Council draft options paper never mentions national-security threats as a concern in the option of disavowing legislation controlling encryption (it does acknowledge potential problems for law enforcement). The draft says that no-legislation approach would help foster “the greatest technical security.” That broad encryption use is in our national security interest is why the administration is heading to support the technology’s broad use. That’s the story here — and not the one about Silicon Valley.

The Warmongers Hang Out the Insular Bumblers

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At the risk of being misunderstood as defending Susan Rice, let me explore a couple of things about this article, complaining about her “bumbling” as National Security Advisor.

3,000 words into a 3,500 word article, this sentence — which I believe is the real point of the story — appears.

And the larger question is whether Hagel’s mostly inward focus on budget and morale issues at the Pentagon is the right focus now—instead of helping to project American power abroad amidst spiraling global crises.

That is, the article expresses the viewpoint of a bunch of mostly anonymous people who believe that “projecting American power” (in the form of military presence) is the solution to the multiple crises in the world today, including the Ebola epidemic. Underlying it all is a complaint not only that Obama isn’t projecting enough tanks and planes, but he’s daring to cut DOD’s budget.

Along the way, the article complains that the White House:

  • Did not consult with “the Pentagon” before sending a plan to combat ISIL to Congress (though the White House may have consulted with Chuck Hagel and Martin Dempsey)
  • Did not alert either Chuck Hagel’s office or “the Pentagon” before asking Congress to withdraw the 2002 AUMF authorizing force against Saddam Hussein but not Islamic terrorists in Iraq
  • Sought Congress’ authorization to use military force in Syria, which led instead to partial CW disarmament by Bashar al-Assad
  • Picked insider Ron Klain to deal with the Ebola crisis that is already being dealt with by CDC

It also complains about Chuck Hagel’s low visibility and the fact he let Dempsey undercut the President’s claims about boots on the ground in Iraq.

Now, I agree with the complaint — if true — that the initial plan sent for ISIL wasn’t sufficiently vetted. It sounds like something the Saudis wrote, which might suggest the Saudis wrote it, which given the Saudi role in fostering ISIL, would be deeply alarming but not at all surprising.

And I agree that the White House appears to run from crisis to crisis like 6 year olds on a soccer field (though I’m not 100% convinced that reflects reality, rather than a response to a political need to appear to be in crisis mode). I even agree there is abundant reason to be skeptical of the Administration’s strategy, though Michael Hirsh doesn’t even consider that they might have one, which seems to overlook hints of an effort to rework the regional structure of the Middle East.

But ultimately, these criticisms serve another purpose: to complain that Obama is not rushing into full-scale war in Iraq and Syria.

To his critics—and I spoke with several for this article inside Obama’s administration as well as recent veterans of it—it’s all a reflection of the slapdash way a president so vested in “ending wars” has embraced his new one.

[snip]

With ISIL still on the move in Iraq and Syria, and the air strikes that Obama announced on Sept. 10 proving to be of dubious effectiveness, many military experts say this is the moment to beef up the U.S. presence with close combat advisers and spotters on the ground who can guide in heavier and more precise airstrikes, as well to provide more U.S. trainers. But the president’s “no boots on the ground” pledge has paralyzed discussion, despite Dempsey’s lonely effort to open the door slightly to the possibility of bringing in such advisers.

There is never the hint of consideration that the solution may perhaps be less military involvement, not more, the last decade of evidence notwithstanding. Nor is there consideration of the possibility that the reason Obama seems so lackadaisical is because he has different goals in Syria than they do, not least to get beyond the election and force the Middle East to start putting some skin in their own security demands.

There’s never the hint of consideration that projection of American power is part of the problem, not the solution.

That’s my general complaint about the article. But I’m also very fascinated by this passage.

The office of Defense Secretary Chuck Hagel was taken by surprise as well last July, when national security adviser Susan Rice sent a letter to House Speaker John Boehner requesting a withdrawal of the Authorization for the Use of Military Force (AUMF) passed in 2002 to enable U.S. military action in Iraq. This letter came after Mosul, a key northern Iraqi city, had already fallen to ISIL and the scale of the threat was becoming clear. The letter was never acted on, and in fact the AUMF that Rice wanted withdrawn is now part of the very authority the administration says it is operating under, along with the 2001 AUMF against al Qaeda. The Pentagon was not given a heads-up about that letter either, according to multiple sources. “We didn’t know it was going over there, and there were significant concerns about it,” said the senior defense official. “We had these authorities to go into Iraq under the 2002 AUMF, which is what she wanted repealed. We believed the authorities were still needed.”

“The authorities were still needed”?? Two and a half years after we withdrew troops from Iraq?

Before I explain my interest in the passage, consider this response from a guy who was Special Counsel to DOD while the Iraq War AUMF was being drawn up, and later interpreted the scope of that AUMF while Assistant Attorney General at OLC, Jack Goldsmith.

Of course we now know that DOD was right, since the administration is now relying on the 2002 AUMF in its uses of force against the Islamic State.

In context, Goldsmith makes an enormous logical leap. That we need some kind of authorization if we’re going to go back to war in Iraq in no way means we need an AUMF crafted — at least as far as those of us who weren’t privy to the process are concerned — to fight an entirely different war. Nothing about Obama’s subsequent decision to go to war suggests we need that AUMF — and almost every observer who wasn’t involved in crafting and interpreting that AUMF disagrees about its applicability in this case.

But Hirsh’s “senior defense official” source seems to be saying something even more. In July 2014 DOD believed “the authorities” provided by Congress in 2002 to fight Saddam “were still needed.” Not, “would be needed” if we put all the boots on the ground this article seems to endorse. But “were still needed.”

That leads me to suspect the entirely unsurprising hypothesis that DOD never stopped relying on (or had already resumed relying on) the AUMF for … something.

It’s not out of the question, for example, that whatever JSOC forces that were part of CIA’s boots on the ground that started at least by June 2013 were “relying” on the totally inapt 2002 AUMF. It’s possible that, even when JSOC gets “sheep-dipped” into CIA ops, it still likes to have an AUMF lying around so it can claim that its un-uniformed soldiers operating off of a battlefield are entitled to the same combatant’s privilege they would be if they wore a uniform on a recognized battlefield.

Or it could be DOD never really pulled all its troops from Iraq. Because someone has to manage the contractors after all. There were reports, for example, as ISIL advanced on Kirkuk, that we’ve always had troops there.

If either is the case, I can see how DOD might react badly to these lines from Rice’s letter asking to have the AUMF withdrawn.

As the President unequivocally stated in late June, “American forces will not be returning to combat in Iraq,…”

[snip]

With American combat troops having completed their withdrawal from Iraq on December 18, 2011, the Iraq AUMF is no longer used for any U.S. government activities and the Administration fully supports its repeal. Such a repeal would go much further in giving the American people confidence that ground forces will not be sent into combat in Iraq.

After all, if ground forces already were in Iraq, and if DOD works under the assumption that its covert special forces obtain combatant status from these AUMFs lying around, it would explain why they were so cranky that Rice moved to withdraw it.

But there must be some explanation, because unless it was in use in July, months before Obama overtly started engaging ISIL in Iraq, there’s no basis for DOD to complain.

It sure seems like the Iraq AUMF has been secretly redefined (maybe even was when Goldsmith was still at DOD), just like the 2001 AUMF.

 

The Civil Liberties Celebration Hangover Wears Off

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JusticePicAt the end of last week, I joked a little about privacy and civil liberties advocates having had the “best week ever”. It was indeed a very good week, but only relatively compared to the near constant assault on the same by the government. But the con is being put back in ICon by the Administration and its mouthpieces.

As I noted in the same post, Obama himself has already thrown cold water on the promise of his NSA Review Board report. Contrary to some, I saw quite a few positives in the report and thought it much stronger than I ever expected. Still, that certainly does not mean it was, or is, the particularly strong reform that is needed. And even the measures and discussion it did contain are worthless without sincerity and dedication to buy into them by the intelligence community and the administration. But if Obama on Friday was the harbinger of the walkback and whitewash of real reform, the foot soldiers are taking the field now to prove the point.

Sunday morning brought out former CIA Deputy Director Michael Morrell on CBS Face the Nation to say this:

I think that is a perception that’s somehow out there. It is not focused on any single American. It is not reading the content of your phone calls or my phone calls or anybody else’s phone calls. It is focused on this metadata for one purpose only and that is to make sure that foreign terrorists aren’t in contact with anybody in the United States.

Morrell also stated that there was “no abuse” by the NSA and that Ed Snowden was a “criminal” who has shirked his duties as a “patriot” by running. Now Mike Morrell is not just some voice out in the intelligence community, he was one of the supposedly hallowed voices that Barack Obama chose to consider “reform”.

Which ought to tell you quite a bit about what Barack Obama really thinks about true reform and your privacy interests. Not much. In fact, Morrell suggested (and Obama almost certainly agrees) that the collection dragnet should be expanded from telephony to also include email. Not exactly the kind of “reform” we had in mind.

Then, Sunday night 60 Minutes showed that fluffing the security state is not just a vice, but an ingrained habit for them. Hot on the heels of their John Miller blowjob on the NSA, last night 60 Minutes opened with a completely hagiographic puff piece on and with National Security Advisor Susan Rice. There was absolutely no news whatsoever in the segment, it was entirely a forum for Rice and her “interviewer”, Lesley Stahl, to spew unsupported allegations about Edward Snowden (He “has 1.5 million documents!”), lie about how the DOJ has interacted with the court system regarding the government surveillance programs (the only false statements have been “inadvertent”) and rehab her image from the Benghazi!! debacle. That was really it. Not exactly the hard hitting journalism you would hope for on the heels of a federal judge declaring a piece of the heart of the surveillance state unconstitutional.

Oh, yes, Susan Rice also proudly proclaimed herself “a pragmatist like Henry Kissinger which, as Tim Shorrock correctly pointed out, is not exactly reassuring from the administration of a Democratic President interested in civil liberties, privacy and the rule of law.

So, the whitewashing of surveillance dragnet reform is in full swing, let the giddiness of last week give way to the understanding that Barack Obama, and the Intelligence Community, have no intention whatsoever of “reforming”. In fact, they will use the illusion of “reform” to expand their authorities and power. Jonathan Turley noted:

Obama stacked the task force on NSA surveillance with hawks to guarantee the preservation of the program.

Not just preserve, but to give the false, nee fraudulent, patina of Obama Administration concern for the privacy and civil liberties concerns of the American citizenry when, in fact, the Administration has none. It is yet another con.

Or, as Glenn Greenwald noted:

The key to the WH panel: its stated purpose was to re-establish public confidence in NSA – NOT reform it.

There may be some moving of the pea beneath the shells, but there will be no meaningful reform from the administration of Barack Obama. The vehicle for reform, if there is to be one at all, will have to come from the Article III federal courts. for an overview of the path of Judge Leon’s decision in Klayman through the DC circuit, see this piece by NLJ’s Zoe Tillman.

Lastly, to give just a little hope after the above distressing content, I recommend a read of this excellent article by Adam Serwer at MSNBC on the cagy pump priming for surveillance reform Justice Sotomayor has done at the Supreme Court:

If Edward Snowden gave federal courts the means to declare the National Security Agency’s data-gathering unconstitutional, Sonia Sotomayor showed them how.

It was Sotomayor’s lonely concurrence in U.S. v Jones, a case involving warrantless use of a GPS tracker on a suspect’s car, that the George W. Bush-appointed Judge Richard Leon relied on when he ruled that the program was likely unconstitutional last week. It was that same concurrence the White House appointed review board on surveillance policy cited when it concluded government surveillance should be scaled back.

“It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” Sotomayor wrote in 2012. “This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

Give the entire article a read, Adam is spot on. If there is to be reform on the surveillance dragnet, it will almost certainly have to be the handiwork of the courts, and Justice Sotomayor planted the seed. The constant barrage of truth and facts coming from the Snowden materials, what Jay Rosen rightfully terms “The Snowden Effect” is providing the food for Sotomayor’s seed to flower. Hopefully.

For Susan Rice, Love of Endless War Means Never Having to Say US Is Sorry

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Yesterday evening, reports appeared in both the New York Times and Khaama Press in Afghanistan that the final hurdle for the Bilateral Security Agreement had been cleared and that US President Barack Obama would sign a letter to be read at the loya jirga. The letter would note that the US has made mistakes in its war efforts in Afghanistan. Further, the letter would convey an apology along with a pledge to avoid repeating the mistakes in which innocent Afghan citizens suffered.

But for the endless war faction within the US military and government, an apology just won’t do (even if there was one to Pakistan that finally reopened the supply routes after the US killed 24 Pakistani border troops). National Security Advisor Susan Rice immediately got time with Wolf Blitzer on CNN to nip the idea of an apology in the bud:

“No such letter has been drafted or delivered. There is not a need for the United States to apologize to Afghanistan,” National Security Adviser Susan Rice said on CNN’s “Situation Room.”

“Quite the contrary, we have sacrificed and supported them in their democratic progress and in tackling the insurgents and al Qaeda. So that (letter of apology) is not on the table.”

Rice said she has seen news reports but has no idea where they are coming from, describing the claims as a “complete misunderstanding of what the situation is.”

Here’s the video:

[youtuber youtube=’http://www.youtube.com/watch?v=KRDWTuApcxM’]

I’m surprised she didn’t go all the way to insisting on an apology from Afghanistan for being ungrateful for all the freedom we’ve unleashed on them.

The Times version of the story has been through a number of changes. Note that the url retains the early headline for the story “Key Issue Said to be Resolved in US-Afghan Security Talks”. The story now reflects the push-back from Rice, but it also shows that diplomats are focusing on a letter anyway (but of course now can’t call it an apology):

A senior State Department official, speaking on condition of anonymity to discuss continuing negotiations, was more noncommittal, saying that a letter acknowledging past issues like civilian casualties was a possibility being weighed. “We will consider his request for reassurances, including the option of a letter from the administration stating our position,” the official said.

Under the Afghan description, in return for the letter, Mr. Karzai would then accept wording that allowed American Special Operations raids to search and detain militants within Afghan homes, but only under “extraordinary circumstances” to save the lives of American soldiers. That would seem to greatly hamper the American intent behind those operations, which commanders have said are critical to taking the fight directly to Al Qaeda and other terrorist groups.

The Washington Post goes further on the letter and suggests that it will indeed be signed by Obama and delivered: Read more →

Cruise Killing on the Passive Voice

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Before I lay out the chronology of the road to war against Syria, check out the language National Security Advisor Susan Rice used to blow off the UN investigation.

Ms. Rice sent the email to Ms. Power and others, officials said. “The investigation is…too late, and will actually tell us what we already know: CW was used,”

While the WSJ quotes Rice claiming to know who actually used the chemical weapons in the next line, ultimately it comes down to this:

“CW was used.”

Jay Carney today also used the passive voice in dismissing the UN investigation.

So the work of that team is redundant, you might say, because it is clearly established already that chemical weapons have been used on a significant scale.

The fucking passive voice.

But before we got to that point consider what happened. First (according to WSJ’s Arab diplomats) the always trustworthy Israelis caught someone moving CW into place.

One crucial piece of the emerging case came from Israeli spy services, which provided the Central Intelligence Agency with intelligence from inside an elite special Syrian unit that oversees Mr. Assad’s chemical weapons, Arab diplomats said. The intelligence, which the CIA was able to verify, showed that certain types of chemical weapons were moved in advance to the same Damascus suburbs where the attack allegedly took place a week ago, Arab diplomats said.

Then after the attack, according to Foreign Policy, US spooks overheard a Syrian Defense official “demanding answers” from an officer in the chemical weapons unit from which the CW would have been used.

Last Monday [sic], in the hours after a horrific chemical attack east of Damascus, an official at the Syrian Ministry of Defense exchanged panicked phone calls with leader of a chemical weapons unit, demanding answers for a nerve agent strike that killed more than 1,000 people. Those conversations were overheard by U.S. intelligence services, The Cable has learned.

FP goes on to point out a lot of the important things we don’t know, such as why and on whose authority, even while laying out the case that CW was used. (Though here are some doubts about whether it was really sarin.)

Meanwhile, according to Gareth Porter, it took until Saturday for the UN to request access to the attack site. Syria granted that access Sunday. At which point John Kerry attempted to personally intervene to stop the investigation.

After the deal was announced on Sunday, however, Kerry pushed Ban in a phone call to call off the investigation completely.

The Wall Street Journal reported the pressure on Ban without mentioning Kerry by name. It said unnamed “U.S. officials” had told the secretary-general that it was “no longer safe for the inspectors to remain in Syria and that their mission was pointless.”

But Ban, who has generally been regarded as a pliable instrument of U.S. policy, refused to withdraw the U.N. team and instead “stood firm on principle”, the Journal reported. He was said to have ordered the U.N. inspectors to “continue their work”.

Meanwhile, the Administration also seems to be delaying the release of its own intelligence report, after promising it would already be out.

Q And there’s a lot of speculation that this intelligence report that presumably would link Assad directly to the chemical weapons attack might be released today. Can you give us an update on the timing?

MR. CARNEY: What I would say is that yesterday I made clear that the intelligence community is working on an assessment and that once we had that assessment we would provide information to the public about it in the coming days. And that remains true. I think that that’s speculation that it would come today rather than some other day. But it will come and I think you can expect it this week.

Do you get the feeling there are some holes in the intelligence report? Such as, if this was ordered by someone in Assad’s chain of command, why a Defense Ministry official would be making “panicked calls” about the strike?

There’s one more thing I find at least interesting about the intelligence.

Recall back in December, when the CW scares first started. We had evidence — as the Israelis claim we have no — of Syria pre-positioning weapons. And then Syria lost its Toobz access. I noted at the time that the utter lack of panic about the latter event suggested that we knew precisely why and how the Toobz came down. That detail may mean nothing about today’s events (though at the time it suggested that the source of the intelligence wasn’t SIGINT, because if the US had just lost its intelligence access it would have been panicking). But it seems notable, given the centrality of the “moving chemicals” intelligence again.

There is, to be sure, a great deal of evidence that (as both Rice and Carney said) “CW were used.”

But the Administration seems increasingly squirrelly allowing time to discover the rest of the occasion, which may be why a Syrian officer release CW without having had received an order from his superiors.

Confirmed: Dutch Ruppersberger, NSA Intercepts, and Deep Hypocrisy on Leaks

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WSJ has a tick-tock of how the talking points on Benghazi developed. It confirms two of the things I noted yesterday. The Intelligence Community developed the talking points behind the pseudo-scandal pursuant to a request from Dutch Ruppersberger.

Later on Sept. 13, then-director David Petraeus presented the CIA’s initial findings to the Senate Intelligence Committee. His conclusions mirrored that morning’s intelligence reporting. He said the attack began “spontaneously” following the protest in Cairo over the video. He also discussed the reports of involvement of Ansar al-Sharia and the al Qaeda affiliate and called the assault a terrorist attack.

Mr. Petraeus presented the same findings the next day to the House intelligence panel, whose top Democrat, Maryland Rep. C.A. “Dutch” Ruppersberger, requested unclassified talking points for lawmakers to use when speaking about the attack.

And the IC decide to withhold the information about a tie to AQIM in part because they were NSA intercepts.

After rounds of bureaucratic exchanges, the CIA officials seeking to remove al Qaeda won the argument, and officials agreed to retain the umbrella term “extremists” but drop the mention of al Qaeda.

The term represented a hedge the CIA used because the attack’s links to al Qaeda had yet to be confirmed. This argument was that including the name would have required additional wording to indicate uncertainty about the al Qaeda links—language that could have opened additional avenues for misinterpretation.

The information was derived from what was seen as a “tenuous” source—intercepts of phone calls between suspected militants saying that al Qaeda-linked militants took part in the attack. The evidence was deemed by some of the intelligence officials to be inconclusive.

Eliminating references to al Qaeda also would protect sources, some of the officials argued. With so few suspected al Qaeda-affiliated militants taking part in the attacks, officials were concerned that fingering al Qaeda in official information would tip them off that they were being monitored. Read more →

97 House Republicans Join Latest Mob Attack on African-American Obama Appointee

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Van Jones

Eric Holder

Valerie Jarrett

Shirley Sherrod

And now, Susan Rice.

Republicans are orchestrating yet another mob attack on one of President Obama’s African-American appointees. In this case, 97 House Republicans have signed a letter imploring Obama not to nominate Rice to replace Hillary Clinton. Yet they don’t raise any of the possibly legitimate reasons to oppose Rice’s appointment–her troubling record on Africa, her closeness to Obama.

No.

These 97 Republicans don’t even try to make this look like legitimate opposition. Instead, they rehash a Benghazi attack that hearings last week debunked.

Ambassador Rice is widely viewed as having either willfully or incompetently misled the American people in the Benghazi matter. Her actions plausibly give the U.S. (and rivals) abroad reason to question U.S. commitment and credibility when needed.

They don’t know what the problem with Rice is, this mob of frothing Republicans. But if she’s black, they seem to be saying, she must be either incompetent or deceitful.

This frothing mob includes such leading lights of the racist right as Steve King, Ted Poe, Louie Gohmert, Michelle Bachmann, and Tim Griffin, and such discredited hacks as Scott DesJarlais and Joe Wilson.

While Alan West signed the letter, along with several Latinos, the letter largely pits a bunch of white radicals against a single black woman whom they claim is not credible because she read talking points developed by the CIA.

This is not the act of reasoned legislators. It’s a mob attack. A mob attack, like so many others, targeted blindly at an African-American professional appointed by our nation’s first African-American President.

Silent Talking Points: Don’t Tell the Terrorists We Know They Exist

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Between the extensive leaking from the so-called closed hearings on Thursday and Friday (Spencer’s got a good wrap-up here) and the Sunday shows (LAT has a good wrap-up here), we’ve got a little better understanding of the Administration’s current understanding of the Benghazi attack.

That said, I’ve got a different set of questions about what those show than most of the pundits commenting on it.

How strongly did Petraeus initially blame al Qaeda-related attackers?

My first question pertains to an apparent discrepancy, not about the testimony last week, but about Petraeus’ initial testimony shortly after the attack.

We know that in his testimony Friday, Petraeus said he knew fairly quickly that Ansar al-Sharia was behind the attack.

He knew “almost immediately” that Ansar al-Sharia, a loosely connected radical Islamist group, was responsible for the attack, as suggested by multiple sources and video from the scene, said the source. At the same time, a stream of intelligence — including about 20 distinct reports — also emerged indicating that a brewing furor over the anti-Islamic video preceded the attack.

The CIA eventually disproved the reports that film-related protests had anything to do with the attack. But this didn’t happen until after Petraeus’ initial briefings to lawmakers, in which he discussed all the possibilities, the source said.

Petraeus blamed some other unnamed intelligence agency for taking out the reference to Ansar al-Sharia (though the talking points came from CIA).

Petraeus testified that the CIA draft written in response to the raid referred to militant groups Ansar al-Shariah and al-Qaida in the Islamic Maghreb but those names were replaced with the word “extremist” in the final draft, according to a congressional staffer. The staffer said Petraeus testified that he allowed other agencies to alter the talking points as they saw fit without asking for final review, to get them out quickly.

But different lawmakers have differing recollections about what Petraeus originally testified, just days after the attack. Peter King suggested that Petraeus hid the role of terrorists in his September 14 briefing to the House Intelligence Committee.

King said Petraeus had briefed the House committee on Sept. 14 and he does not recall Petraeus being so positive at that time that it was a terrorist attack. “He thought all along that he made it clear there was terrorist involvement,” King said. “That was not my recollection.”

That’s not how Dianne Feinstein (who elsewhere expressed concern about the “suffering” related to the sexy time scandal) remembers a briefing on September 12.

Feinstein, appearing on NBC’s “Meet the Press,” said that the now-former director of the Central Intelligence Agency, David H. Petraeus, had “very clearly said that it was a terrorist attack” in a meeting with lawmakers the day after the attack in Benghazi.

Mind you, those were different briefings–it’s possible just the Gang of Four got briefed on September 12. If that’s the case (and if King is telling the truth), it would mean Petraeus was less forthcoming about terrorist involvement with the full House Committee than with a more select group of lawmakers.

And note this seems to be the reverse of the politics you’d expect. While both DiFi and King vow to get to the bottom of how the talking points were made, King seems to attribute some deceit to Petraeus whereas DiFi seems to believe the suffering Petraeus was forthright–and clear-headed–from the start.

Were we really afraid to let Ansar al-Sharia know we were onto them?

Now consider the excuse Petraeus gave for taking mention of Ansar al-Sharia and AQIM out of the unclassified talking points: we didn’t want the terrorists to know we knew about them.

Testifying out of sight, ex-CIA Director David Petraeus told Congress Friday that classified intelligence showed the deadly raid on the U.S. Consulate in Libya was a terrorist attack but the administration withheld the suspected role of al-Qaida affiliates to avoid tipping them off.

I wonder if that’s the entire story.

I’m not saying the Administration deliberately used inaccurate talking points; if they had, then why did Obama name terrorism even before Susan Rice appeared on the Sunday shows? It’d be a colossal fuckup of a cover-up.

And there are certainly reasons to believe that’s why they withheld this detail. It is true that the conclusions about Ansar al-Sharia and AQIM rely in significant part on–presumably–NSA intercepts of voice communications. Read more →

Scary Iran Plot: Making an International Case before Passing the Ham Sandwich Test

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No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;

I want to return to something Manssor Arbabsiar’s attorney, Sabrina Shroff, said the other day. “If he is indicted, he will plead not guilty.”

I’ve suggested Shroff may have reason to believe Arbabsiar will get a plea deal before this ever goes to the grand jury. Which would mean no one would ever challenge the government on the many holes in this case [oh hey! that’s me at Atlantic.com]: the claimed lack of taped conversations, the explanation why Arbabsiar cooperated, some holes in the government’s money trail (at least as it appears in the complaint), the remarkable coinkydink Arbabsiar just happened to ask a DEA informant to help him kidnap the Saudi Ambassador, and some perhaps incorrect interpretations of existing tape transcripts.

It would be very convenient for the government if this never went to trial.

But think, for a moment, about the government’s actions in this affair. It rolled out a splashy press conference. Joe Biden has declared no options off the table; Susan Rice is “unit[ing] world opinion” against Iran. And if that doesn’t work, Hillary Clinton will make personal calls followed by onsite teams to persuade allies that this whole plot isn’t a bunch of bupkis.

We have rolled out a giant campaign to use this plot to do … something … with Iran.

But it has yet to pass the ham sandwich test.

Our government has had eleven business days now to subject its amended case to the scrutiny of a grand jury, it had two and a half months to subject its original case to the scrutiny of a grand jury, and it hasn’t yet bothered to do so. We’re sharing our case with the rest of the world before we’re subjecting it to the most basic level of oversight enshrined in our Constitution. Instead of using the legal process laid out in our founding document, we’ve gotten the signature of a Magistrate Judge and run off with it to the rest of the world. And while I have no doubt of the competence of Magistrate Judge Michael Dolinger, the judge who signed the complaint in this case, that’s simply not the way our judicial system is supposed to work. Average citizens are supposed to review the work of the government when it makes legal cases, not just Magistrates.

All of which ought to raise real questions why our government has decided to share these details with the rest of the world, but bypassed the step where they’re supposed to share them with its own citizens.