Drone Memos and Obama Transparency

May 21, 2014– There are several directions to take the news that the Obama administration is deciding to release the Justice Department legal memos that were used to legitimize the extrajudicial killing of an American citizen, in this case Anwar al-Awlaki. I don’t have time to follow all the tracks so, at least for now, I’ll confine myself to the issue of what this tells us about openness in this administration.

Barack Obama entered office with a promise to run the most open and transparent presidency in American history. There were some good moves at first–President Obama rode over opposition to the release of an earlier generation of Office of Legal Counsel papers–the ones that justified Bush era torture–and he ordered government agencies to improve public access, FOIA response and the like. The declassification initiatives, at least, are honored in their breach.

The Justice Department drone war memos–for that is what they are–are only returning to the news here. The administration had denied them previously–to the Congress, which has oversight authority and thus a full right to look at them. In each situation where it faced a dilemma over sensitive information like the drone memos, Obama chose to have some official make an informal statement making claims as to information or policy, rather than to expose actual documents to the light of day.

Only when John O. Brennan was up for confirmation as CIA director in 2013, and these specific OLC memos were made a condition for congressional approval, did the wind change. Then the administration took the road of crafting a different document, one summarizing the OLC memos–and making that one public by means of a deliberate leak to a news organization (there are the same people who are now saying that contacts with news media must have official approval). When Congress stuck to its guns, President Obama reluctantly allowed that legislators could view the real documents, but behind closed doors.

The New York Times and others filed Freedom of Information lawsuits seeking the same documents. The American Civil Liberties Union filed a matching lawsuit. That case recently came to decision, and the court ruled that the Obama administration is required to release the material. In fact the judge issued specific instructions on which parts of the documents need to be released in full. The question became whether Attorney General Eric Holder’s Justice Department will pursue an appeal of the judgment.

The complicating factor, as it happens, is another nomination. This time the actual author of the OLC drone war memos, David J. Barron, is up for a seat on the First Circuit of the U.S. Court of Appeals, and senators have threatened to block the nomination unless the administration releases the documents. Guess what? News is that Holder will not appeal. Instead, administration officials are asking for more time to skew the memos by deleting information, and they want to file a more limited appeal for certain sections they would like to keep secret. Thus even when a court rules them out of bounds and a political factor is driving the response, the administration still wants to get its way by playing on the margins and with the timing.

Open administration? Like the Senate torture report, like the FISA court opinions, like the drone memos previously, Mr. Obama’s administration seems never to have met a piece of information it does not deem worthy of keeping secret. If you look at the annual reports of the interagency board that monitors classified information, you’ll also see that the number of things designated secret is rising sharply. The whole system is broken. That’s what needs to be fixed. The CIA is not playing straight on secrecy, the Justice Department is complicit, the White House fails to enforce its own directives. Let’s stop talking about Obama transparency.

Catching Up with Robert Litt

May 21, 2014– Remember spook superlawyer Robert S. Litt? He’s featured here several times. Litt was the one who told Fearful Leader Clapper that it was an adequate explanation of his lie about NSA dragnet eavesdropping to say he was “thinking about” something else. There’s plenty more. I haven’t got time at the moment, and I also hoped to post something about the imminent Justice Department release–under court order–of the drone war legal memos–but I couldn’t let the Robert Litt news pass without comment.

Representing General James Clapper, the director of national intelligence, Litt attended the House Rules Committee markup session on new legislation that supposedly will restrict the National Security Agency eavesdropping. Litt was instrumental in leading the legislators to weaken their bill, substituting a vague definition for what requires court approval. The House had already left it up to the administration to define the broad category limits–probably the equivalent of giving your teenager the car keys without thinking about it–but that wasn’t enough for the spy mavens. They preferred a definition which enables them to nominate categories and thus obtain broad swathes of data anyway. The result is so obviously flawed that a number of backers of this bill have withdrawn their support.

Here’s the question: Did the director of national intelligence cynically manipulate the bill in order to ensure its defeat, did he–represented by Mr. Litt–engineer a happy solution that leaves the NSA virtually unfettered, or were General Clapper’s objectives both of these things?

America’s Terrified Spooks (2)

May 9, 2014–So here we are again, back at the Family Jewels crisis. In the last episode (“American Spooks Terrified,” April 25, 2014) we had our Fearful Leader, General James Clapper, issuing orders that require intelligence community personnel to get top bosses’ approval before any contact with the media, and to report contacts, even inadvertent ones, up the chain of command. I remarked on this as confirming the concerns Clapper and other intelligence directors expressed at threat assessment hearings earlier this year that their own employees rank as a national security threat. Today we have additional evidence, if any were needed, of Fearful Leader’s secrecy hysteria. If I were an intelligence agency employee I would be very worried.

The latest blow to civility, rationality, even First Amendment rights, comes in the form of Office of Director of National Intelligence Instruction 80.04, issued on April 8. The order requires ODNI personnel to obtain prior approval for “all official and non-official information intended for public release.” The Clapper directive describes this as “pre-publication review.” His directive complements the March order, which covered all intelligence officers. The goal is to prevent unauthorized disclosures. Note, however, that it does not apply to secret documents but to the very vague category information. That means, in effect, every item of information, secret or not, and every means of transmission of information–indeed the order itself lists “forums, panels, round tables, and question and answer sessions.”

Chilling? You bet. As with the March directive on media contacts the effect will be to obtain–as the security types no doubt think of it–“information dominance.” Ensure that everything out there is on-message from ODNI’s standpoint. Enforceable? Probably not. The attempt to regulate every single contact, and every means of exchange, between the public and an agency officer is bound to lead to a host of problems, bureaucratic, legal, and practical.

The CIA at least has a mechanism for this, something called the Publications Review Board. To enforce the Clapper rules the ODNI will need a similar entity. More to the point, this is not a value-neutral procedure. The people who run this thing will have irresistible temptations to demand and enforce a certain ideological conformity. In The Family Jewels there is a chapter which shows at considerable length how the CIA’s board is compromised in exactly this way.

It is an index of both the intelligence community’s hysteria and the intellectual bankruptcy of this “review” process that the CIA, which published an interview with the chairman of its Publications Review Board last month–no doubt with the criticisms of Family Jewels in mind–chose not even to endow this person with a name. –The Intelligence Identities Protection Act gives the CIA the authority to shield the identity of a covert officer on active assignment or recently returned. It has no such authority to withhold the identity of an administrative officer at headquarters, acting in an official capacity, in fact as part of a spin doctor operation. You can see how broken this mechanism has become.

The CIA directive governing pre-publication review at least has the merit of some specificity regarding what is covered. Clapper’s order for “information” can pertain to anything–ideas can require ODNI review because they can embody information. Plus the review process–ODNI or CIA–can get in the way of legitimate complaint procedures. The CIA directive has language discussing whistleblower documents created to be given to the Inspector General or the congressional oversight committees. The order says these are personal when first created (and safe from review) but at some point become subject to PRB action. Thus terrain on which to fight over the status of whistleblowers’ complaints is written right into the regulations. Edward Snowden’s material would not have survived “publication” review.

In the be-careful-what-you-wish-for category, General Clapper’s directive potentially punishes/criminalizes the time-honored Washington practice of obtaining policy action by leaking. The order requires ODNI officers to cite public information which proves that what they want to say is not secret–and it prohibits them from citing leaks as such sources. Think about that for a minute. In the intelligence manipulation that preceded the Bush invasion of Iraq, there was a moment in the scare-mongering when administration officials leaked some aluminum tubes information and then the vice-president, the deputy secretary of defense, and the national security adviser all used identical language about “mushroom clouds” to refer to the leaked data. General Clapper’s directive, not so conveniently for government, would make that kind of maneuver impossible.

Every review of government secrecy in living memory concludes that we classify too much information. By making everything secret, nothing becomes secret. The ODNI directive creates precisely that kind of situation. We should be moving in the direction of reducing secrecy, not increasing the problem. General Clapper wants to create a secrecy overload.

The legal and constitutional problems with this kind of secrecy have been discussed in this space before. I’ll not revisit them, except to quote the anonymous CIA chairman’s statement: “We are aware that people have first amendment rights.” That’s a good thing. Unfortunately the reality of what the spooks are doing indicates they either don’t know or don’t care.

 

Dien Bien Phu: “The Fruit are Ripe”

May 8, 2014–French shortwave radio in Tonkin broadcast the phrase “The Fruit are Ripe” at 1:05 PM of May 8, 1954 (1:05 AM on the American east coast). The message was an “open code,” of the same sort the British had sent over the BBC in World War II to alert various Resistance networks on the continent. The French military commander in Tonkin, Major General Rene Cogny, had agreed to send this message when he was certain of the fall of the entrenched camp at Dien Bien Phu. French army units in Laos had been warned, in messages dropped to them by scout planes, to listen for the open code message.

The Tonkin radio was actually late–the French at Dien Bien Phu had stopped shooting around 5:30 in the afternoon of the 7th. Like much else about this decisive battle, the reasons for the discrepancy remain obscure. Perhaps Cogny was reluctant to acknowledge final defeat. Or again, there had been a last-minute plan for a sally of the fittest remaining French troops and maybe the Tonkin command, hoping that action had taken place, was trying to make time for the desperate sortie.

“The Fruit are Ripe” began a sort of delicate dance with many movements. One was among the French units in Laos, alerted to be on the watch for from Dien Bien Phu. Seventy-eight men made it to join either the Franco-Laotian regulars and commandos, or the Hmong partisans strung in an arc along the Laotian side of the border. Remarkably, one survivor had also walked out of another French entrenched camp, Na San, when that had been abandoned in the summer of 1953.

Another dance movement was the Viet Minh pursuit. General Giap wanted to regroup his main forces closer to Hanoi for a final offensive–but he also wished to follow up into Laos. He ordered Viet Minh who had not been at the battle–and some who were–into northern Laos. That meant a race between the French perched in their arc and the Viet Minh pursuers.

It was an irony of Dien Bien Phu that the worst French wounded became the luckiest survivors. With but a handful of doctors and medical personnel, and almost no drugs, the Viet Minh were in no position to treat French wounded. Meanwhile French medical staff, led by the redoubtable Doctor Paul Grauwin, shared their drug supplies with the Viets and helped their wounded. Together with the Viet Minh’s chief surgeon, General Giap decided to make a deal. In exchange for French medicines and medical assistance, they would re-open the airfield at Dien Bien Phu. The French air force could fly in medical supplies and evacuate the wounded. Some 858 seriously wounded soldiers left the entrenched camp that way.

In yet another United States connection to Dien Bien Phu, many of those French wounded would immediately be evacuated to France by the U.S. Air Force. It happened this way: There had been a secret U.S. airlift of paratroops and French Navy pilots called Project “Blue Star”–you can read all about it in Operation Vulture. Blue Star had used huge C-124 transport planes–the C-5As of that day–to deliver the French troops to what is now Da Nang. The Blue Star planes were still there when the smaller French Dakotas began to lift out the wounded from Dien Bien Phu. President Dwight D. Eisenhower approved a French appeal to carry the wounded home aboard the big American planes.

Thus ended the epic siege in the Vietnamese uplands.

The End at Dien Bien Phu

May 7, 2014–At 10:20 AM on May 7, 1954 (10:20 PM of May 6 on the U.S. east coast), the Frenchman leading all forces in Laos asked the general commanding the north of Indochina to give him immediate notice if there were a “grave event” concerning Dien Bien Phu. The Laotian commander, Colonel Boucher de Crevecoeur, was clearly thinking that he should warn the troops sent to effect an overland rescue of the entrenched camp that they should get out of the way. Tonkin theater commander Major General Rene Cogny advised De Crevecoeur a few hours later that if the threatened event occurred he would have French radios broadcast the phrase “The fruit are ripe.”

In gaming there are only a few boardgames which deal with the Franco-Vietnamese war, and even fewer that concern Dien Bien Phu itself. The ones that do uniformly confirm the French did not have a chance at that battle, indicating the dubious strategy of selecting that high mountain valley for the scene of a major encounter.

That was true of my game as well. Around the time I first wrote my book on Dien Bien Phu, Operation Vulture , I also designed a boardgame on the battle. For those familiar with the gaming of that era, it was a “mini-monster” design with a main board depicting the valley center and French strongpoints, plus a strategic board of the region surrounding Dien Bien Phu. The strategic/tactical split followed the concept of the Avalon Hill Roman era siege game Alesia. Using the strategic board forces could maneuver to the battle, the French in Laos could try and rescue the camp, and the French air force could attempt to reduce the scale of Viet Minh supply. French forces were modeled in companies, with breakdowns to platoons; the Viet Minh were at the battalion-level, with breakdowns to companies. It was a highly detailed boardgame and showed very well the dynamics of the strongpoint battle. Viet Minh forces sustained tremendous losses, but the French could not win.

What the generals learn–or do not learn– from history could fill books. Politicians too. Let’s just hope we’re not seeing this lesson repeated today.

NSA Dragnet Nightmare: Consider the Turkish Scenario

May 6, 2014–Not a lot of time today but I did want to put something out to chew on. The truth is that we need to proceed very carefully about how we reform the National Security Agency. An ill-considered effort can easily result in an eavesdropping regime even more sinister than the one that already exists. As always the devil is in the details.

When President Obama made his reform speech back in January, he issued a directive to the NSA and Justice Department to rein in their activities while attempting to preserve their capabilities. They appear to have succeeded. Last week there were indications the spooks like the reform regime even better, because in leaving the metadata content with the corporations along with the other data the companies already have, a new-system court order will actually afford NSA access to a wider range of the content its analysts want to get.

NSA “reform” is still a work in progress. But this got me to thinking about what is happening in Turkey, where the current political scandal bears a certain functional similarity to what is happening here. Superficially, of course, the shoe is on the other foot. That is, hackers, sharp political observers, and individuals unknown have in effect done the NSA trick and recorded the phone conversations and other insider info from the country’s prime minister, Recep Erdogan, his family, government ministers’ Turkey’s spy chief, and others. With great embarrassment to the Erdogan government, conversations have been replayed on YouTube exposing corruption, malfeasance, and other chicanery. The government’s response of closing certain newspapers and the internet has proven largely unsuccessful. Political opponents are demanding an investigation of the graft.

This kind of Family Jewels crisis is similar to the Snowden leaks in the United States. Like the Obama administration the Erdogan government promises new law to deal with the abuses. But in Turkey much of the new law actually frees the hand of the security services–the law aims to broaden the authority for government wiretaps (in the name of uncovering the source of the leaks) while also making government agents immune from criminal prosecution. Thus does an uncomfortable political scandal lead to the opposite of reform. Let us take care that America avoids the path taken in Turkey.

NSA vs Silicon Valley: Can’t Win? Change the Subject!

May 3, 2014–So, what the whistleblower said was all true. In fact, the whistleblower hardly said anything. He let the documents do the talking. The National Security Agency is intercepting anyone they want and collecting the metadata on everyone. The additional documents, legal rulings, that had to be released to “prove” that this dragnet eavesdropping had any juridical basis at all only showed that the denizens of Fort Meade had indeed sought to create a framework for doing precisely what the Snowden documents said.

The diplomatic costs have come home to roost. German-American talks on a spy treaty have collapsed. Our side blames the Germans and makes it out to be somehow off-color that another nation should demand that what American spies do on German soil cannot be illegal under German law. The Word is we don’t make deals like that even with our closest allies. The more insinuating text is that what spies do is basically illegal anyway. Why care?

Ukraine is one reason. German Chancellor Angela Merkel visited Washington this week, her talks with President Barack Obama shadowed at every turn by the NSA eavesdropping scandal. Barack needs Merkel now–he needs her to stand with him on Russian encroachments on the Ukraine, an issue on which Germany can be a major player. But Merkel is still licking political wounds inflicted upon her by the NSA scandal. Obama was conspicuously smiling at their joint appearances but underneath the president must be acutely aware of how Fort Meade’s antics have hurt his larger projects.

The NSA started off by insisting it was not collecting data on anyone nor was it eavesdropping. Then it claimed it was “only” dealing in metadata. Then it was only aiming at legitimate intelligence targets, and not Americans. After revelation that our friend Merkel’s phones were bugged, the line went that everybody spies on their allies. As the evidence of massive NSA interception mounted the spooks squirmed on the hook of public disaster. All that interception (phone calls, emails, cloud memory holdings, game moves, web search data) might just send them into oblivion.

President Obama didn’t want that any more than Fort Meade. Back in January he moved on some reforms–not enough, but a start. The problem remains that the spooks still need a way to reframe the issue so they are not at the center of the cross-hairs. It appears that both Mr. Obama and the NSA  are on the verge of creating that narrative.

It was around the New Year when you began to hear–first in Op-Eds by spy-world figures like the former CIA officer John McLaughlin–that the NSA is only doing the same sort of data-mining and cookie reading the corporations engage in. Their point that the privacy issue is bigger than NSA spying is actually well taken. I’ll buy that too. So did Obama. He ordered up a study of web privacy issues and got the first results right around when Chancellor Merkel came to town.

But the White House and Fort Meade should be careful what they wish for. Yes, there should be much more stringent privacy controls on what Silicon Valley can read out on ordinary people. As a matter of fact, Angela Merkel’s country is one where some of those more stringent controls already exist, and those privacy standards are one reason the NSA spying has been so damaging over there. Your phone should not be an NSA target for the same reasons as Merkel’s.

What the spooks would like to come out of this is for citizens to say–for reasons of convenience–that Silicon Valley data-mining is OK and that, if it is, the NSA spying is fine too. But there are both qualitative and quantitative differences in these observations. Silicon Valley cannot target a drone on you or throw you in jail. It collects your data in hopes of winning your (and your friends’) dollars. The NSA eavesdropping is purposeful. It traces your connections in hopes of linking you and your friends, and if at some “hop” there happens to be a bad guy in the chain, woe to you all. What the NSA really doesn’t want is for privacy advocates to say that Silicon Valley and NSA spying are both wrong. Of course, that’s what is actually true. Everyone needs “Merkel rules.”