Category Archives: The Controversy

Spy Scandals Update

Posted on by
Reply

March 20, 2014–Don’t think for a moment that the Spy Scandals involving the Central Intelligence Agency (CIA) and the National Security Agency (NSA) have gone away. Today there are several relevant items to report.

A week ago I argued in this space (“The Family Jewels Crisis,” March 12, 2014) that presidents circle their wagons when controversy that arises from the intelligence agencies rises to a certain level. In my book The Family Jewels I showed how that works. Now we have more evidence that that is happening. You’ll recall that the CIA filed a criminal notice to the Department of Justice alleging that investigators from the Senate Select Committee on Intelligence broke the law in obtaining a document demonstrating the CIA’s response to the Senate torture report is disingenuous. Now Attorney General Eric Holder has commented. In his first public remarks on the matter Holder says that the Justice Department receives many criminal referrals and often declines to investigate or to prosecute.

That sounds suspiciously like an intention to cut the CIA loose and leave it flapping in the wind. You can be sure there will be more on this.

Meanwhile there’s also a fresh development in the NSA eavesdropping scandal. National Security Agency officials showed up yesterday to testify at PCLOB, the awkwardly named Privacy and Civil Liberties Oversight Board, which continues to be quite alarmed at the agency’s dragnet eavesdropping (see “Funny Name, Serious Business,” January 23, 2014; “”Independent Agency Trashes NSA Claims,” January 24, 2014). Appearing at PCLOB’s latest hearing were the Director of National Intelligence’s top lawyer, Robert S. Litt, plus NSA general counsel Rajesh De. Their testimony ought to raise eyebrows.

Robert Litt here added to his growing reputation as an apparatchik. Referring to PCLOB’s recommendation in its January report that the Foreign Intelligence Surveillance Court (FISC) be required to approve each NSA use of its dragnet-gathered data, Mr. Litt did two things. First, he admitted that the number of NSA uses of the data was far greater than previously thought. Second, he asserted that “the operational burden” of requiring the FISC to make those judgments would be excessive. The judges, Litt declared, “would be extremely unhappy if they were required to approve every such query.”

Translation: the system should operate for the convenience of the judges (and of the NSA) rather than for the protection of the public’s civil and privacy rights, which, of course, was the purpose for which the Court was created.

The arrogance here is breathtaking.

As for Mr. De, he told PCLOB that an NSA rule previously touted as protecting Americans–that agency personnel must be at least 51 percent confident their target is a foreigner–is a myth. It does not exist. Rather, determinations are made based upon the “totality” of the circumstances. In effect this means that the NSA, which is dealing with anonymous phone numbers, is freed from employing any objective criteria whatever.

No doubt there will be more here too.

CIA: On the Hook

Posted on by
Reply

March 13, 2014–“We want this behind us.” Thus said CIA director John O. Brennan during the question and answer session following his Council on Foreign Relations speech on Tuesday. He also said, “We are not in any way, shape, or form trying to thwart this report’s progression, release.” Which begs the question, why hasn’t the CIA declassified the document?

In 2010 the agency shifted blame to the White House, alleging that Obama’s staff had ordered it to remove documents from the Senate Select Committee on Intelligence (SSCI) computers used in the investigation which produced this report (the president’s top lawyer denied that). This time White House cover is not available. The president’s spokesman has said the White House wants the report out too. The Senate intelligence committee certainly does also.

So where is the report?

Returning to the agency after that speech, Director Brennan issued a message to CIA employees. He told them that the agency “tried to work as collaboratively as possible with the committee,” and cited his extensive meetings (arguments–Brennan himself characterized the contacts as “spirited and even sporty”) with SSCI leaders as evidence of that.

Of course, we already know that the CIA had a monitoring team charged with going over every document made available to the investigators, multiple times. Several thousand documents were denied at that level. McClatchy News reports today that 9,400 documents were denied during the early period on executive privilege grounds. It is not clear whether this report refers to the same set of documents the CIA previously admitted removing. If it is, that’s not very good either–it would mean the agency was misrepresenting by two-thirds the amount of material actually extracted. If these are separate reports they indicate the withholding was even more extensive than previously represented. And note–this was separate and independent from the two actions in 2010 when over nine hundred additional documents (or pages) that had already been handed over were removed from the cache that was available to investigators. The CIA’s eventual response to the SSCI investigation would state, “We disagree with the Study’s contention that limiting access is tantamount to impeding oversight.”

The dispute over the 2009 Panetta review document (see “Senator Feinstein Comes Out of the Closet,” March 11, 2014) sheds more light: the CIA has denied this document to its own congressional overseers. Two arguments have ben used to justify that action. One, the pretention this paper was “pre-decisional” and therefore exempt, I dealt with yesterday (“The Family Jewels Crisis,” March 12, 2014). The other is that because the Panetta Review was compiled in 2009 it fell outside the scope of the SSCI inquiry, which was dealing with events up until 2006. This is disingenuous for two reasons. First, the congressional committees have an absolute right to review any CIA document for any reason to do with their oversight function. That Langley makes an issue of “scope” merely demonstrates it is relying upon precise literal interpretations of prior arrangements–which is the antithesis of Brennan’s claim to be working collaboratively. Second, the Panetta review was compiled as a summary of the same documents that were within the purview of the SSCI inquiry. Thus they are derivative of those materials and a legitimate argument can be made that the review should be accessible even within the agreed scope.

Contrast this denial with Brennan’s own actions. In a statement undoubtedly intended to shore up agency morale, the director told his employees “we also owe it to the women and men who faithfully did their duty in executing this program to try and make sure any historical account of it is balanced and accurate.” Director Brennan then proceeded to release to the entire CIA workforce the private letter he had written on January 27 to Chairwoman Dianne Feinstein of the SSCI, disputing the Senate committee’s demand for the Panetta review, claiming “significant Executive branch confidentiality interests” in the document, and alleging a classification breach had occurred.

(Parenthetically, the security marking on this letter is “Unclassified/For Official Use Only,” a grading which in recent years has repeatedly been construed as conveying a degree of secrecy protection, but which Brennan ignored in his release of it, not to mention its status as a private communication. The release of this document had to be for the purpose of providing ammunition to critics of the SSCI inquiry.)

“Balanced and accurate” history? Sounds like Fox News. Let’s take up the matter of the notorious CIA refutation of the Senate’s investigative report, which is also at the center of this dispute. Former CIA general counsel Stephen W. Preston was grilled about this rebuttal in August 2013. These facts came to the surface in Preston’s questions for the record: The CIA response was commissioned by Michael J. Morrell, then the acting director, who had been the second in command of the operations directorate when the rendition and black prison project was initiated. It was Morrell, according to his chief lawyer, who “deemed it impractical to respond on a line-by-line basis.” So the twenty conclusions in the Senate report’s executive summary were farmed out among a response team for a “deep dive.” Each analyst took his subject, reviewed what the SSCI concluded about it, and may have consulted either or both the underlying detailed text and the documents on which the Senate committee had based their conclusions. In other words, in compiling its rebuttal no one at the CIA even read the entire SSCI report.  Preston admitted, “the agency’s response does not constitute an encyclopedic treatment of the SSCI study.”

The reasons the CIA is on the hook today is that it is losing White House support while still being unable to countenance the surfacing of an awesome body of evidence demonstrating its misbehavior–not in the abusive torture program alone but also in the details it furnished the Justice Department for those outrageous torture “opinions,” and in the information it provided to Congress. National security is not the reason Langley won’t release the Senate torture report or its response. This is about Family Jewels.

 

The Family Jewels Crisis

Posted on by
1

March 12, 2014–Senator Dianne Feinstein’s laying down of the gauntlet yesterday has already resulted in a flurry of developments. Like two trains racing toward each other down a single  track, the Senate Select Committee on Intelligence (SSCI) and Central Intelligence Agency (CIA) seem headed for a collision. In this secret world the crisis may have begun weeks ago but now it becomes visible. If the latter is the case it is already too late to avert a Family Jewels crisis, though if the collision is only now beginning there may still be time.

Under John O. Brennan, the CIA has been all about business as usual. As noted previously here (“The CIA Bamboozles Congress–Again,” March 6; “Focus on Congressional Oversight of Intelligence,” January 25, 2014; and elsewhere) the agency has been treating the oversight committees as a stage on which to spin whatever message they want. Historically there has been a cycle of ascendancy in the exercise of the oversight power and since 9/11 the CIA has been in this mode of regarding Congress as a marginal irritant (“The Fire Behind CIA’s Smoke,” March 7). So it remains defiant right now.

Brennan no doubt expected the Senate intelligence committee to go public in some way. He arranged a speech of his own for yesterday, one he gave at the Council on Foreign Relations. The CIA director went out of his way to advert that, when taking his oath of office last year, “I had the privilege of placing my hand on the very first printed copy of the Constitution.” The allusion was obvious. Much later in an otherwise pedestrian speech Director Brennan came to the matter of his current imbroglio. He believes in congressional oversight, he says; the CIA is better for it, Brennan declared; “and as long as I am director of CIA I will do whatever I can to be responsive to the elected representatives of the American people.”

John Brennan went on to say that he did not always agree with the SSCI and its House counterpart, and that they “frequently” have “what I would call ‘spirited’ and even ‘sporty’ discussions.” So what does that mean? In the case of the SSCI torture investigation, the CIA has buried the Senate torture report for fifteen months, most of that time with Brennan at the helm, and filed a misleading rebuttal, which it is also withholding from the American people. Senate staff have had more than sixty hours of discussion with CIA officials without effect. An SSCI member asked the CIA to release a parallel document, the “Panetta review,” which differs from the CIA rebuttal. Silence. Senator Feinstein, the chairwoman, raises that request too. No answer at first, then denial on the grounds the Panetta review is a “pre-decisional” or “deliberative” document.

I did not want to open this particular acorn yesterday, but it is important in this crisis so now I will. The “pre-decisional” exemption is a new category of secrecy invented by George W. Bush. The supposed idea is to protect the advice given to presidents. I cannot say exactly where the motive lay but my suspicion is he wanted to shield the rationales for decisions made by his father, George Herbert Walker Bush, whose papers were just then coming into the system, and, of course, his own for when the time comes (presidential papers are supposed to open after twelve years). The Panetta review, according to the CIA, is untouchable because it is a deliberative document. But the substance of the Panetta review, we are told, is a summary of the CIA records which were going to be made available to Senate investigators. There was nothing “decisional” about it–unless the decision was about what evidence should be suppressed and kept away from legally authorized investigators.

If this were a criminal case, the withholding of the Panetta review would be obstruction of justice–as was the CIA’s destruction of videotapes in this very same matter–and the deliberative secrecy would be conspiracy. By the CIA’s lights, however, that privileged it to suppress the Panetta review. But there is still more: The CIA’s official rebuttal to the SSCI report, personally delivered to Senator Dianne Feinstein by Director Brennan on June 27, 2013, is also classified as a “deliberative” document. Right there this should dispose of the argument that deliberative documents cannot be accessed.

There are three points to be made here. First, the CIA is arrogating to itself a secrecy protection created for presidents. Second, the “deliberative” exemption, if it properly exists, is being stretched to cover materials that have nothing to do with decisions. By this standard anything can be a deliberative document. Third, CIA selectively applied the exemption depending upon its interests of the moment, and for its own purposes. This is not national security protection it is political cover.

Then agency officers conducted an unauthorized search of SSCI computers. Director Brennan at least informed the Senate committee when he discovered this had happened, but the CIA then refused to respond to SSCI inquiries about the intrusion, and a CIA lawyer–a principal character in the torture story–filed a criminal complaint against the Senate investigators. So this is responsiveness to legislative oversight? You decide.

This CIA story on the “RDI” (“Rendition, Detainment, Interrogation”) project–it has acquired a new name here–is on a par with the NSA eavesdropping program. On that front–also yesterday–the new NSA director testified at his nomination hearing that he favors continuing the dragnet coverage. And then there is the CIA drone war, on which information was also kept from the congressional committees. These are Family Jewels.

We are swiftly coming to a Family Jewels crisis. These kinds of eruptions follow a pattern which I have detailed at length elsewhere. A president starts by shielding the intelligence agencies. Barack Obama did that in 2009 when he turned aside public pressures for an inquiry into these excesses. But when presidents become politically threatened by their actions they circle the wagons and let the intelligence agencies flap in the wind. This happened in the “Year of Intelligence,” 1975, the time of the Church and Pike investigations; in the Iran-Contra affair, and again in the 1990s on Guatemala.

There are enough skeins in the current disputes to indicate Obama finds himself in a similar situation today and is beginning to do the same thing. He cooperated in the initial suppression of inquiry. He went along with withholding data on the drone killings and NSA eavesdropping–and then he defended the NSA dragnet. In the early days of the Senate committee investigation, McClatchy News has reported, the White House supported the CIA in withholding some 9,400 documents from SSCI investigators. Dianne Feinstein has now revealed that SSCI met with White House lawyers in 2010 when it first discovered CIA had been removing documents from its investigators’ cache. The CIA “search” of SSCI computers in January of this year represents a transgression against undertakings the White House made to the Senate intelligence committee then. White House press aides have told the public that Obama “favors” release of the SSCI report and expects it will emerge–but the president has not responded to repeated specific requests from SSCI member Mark Udall. He has told reporters that it would not be proper for him to become involved at this time.

The Justice Department recently said in a legal filing that the SSCI torture report is in the jurisdiction of the Senate intelligence committee (walking back the CIA’s claim that declassification power belongs only to it), and the White House has commented that the Senate should act. President Obama himself, in his first public remarks on the subject, said that the issue is “not something that is an appropriate role for me and the White House to wade into at this point.” Meanwhile, the president’s chief of staff and top lawyer visited with Senator Feinstein after her speech. Obama has become vulnerable.  It looks very much are if the wagons are being circled on Pennsylvania Avenue.

[This post has been revised based on news reporting of March 13, and subsequently again in order to include Mr. Obama’s direct quote.]

Senator Feinstein Comes Out of the Closet

Posted on by
Reply

March 11, 2014– The chairwoman of the Senate intelligence committee, Senator Dianne Feinstein, is taking the gloves off. In a speech earlier today in the Senate chamber, the Senate Select Committee on Intelligence (SSCI) chief hit back at the Central Intelligence Agency for its innuendo campaign painting black hats on the SSCI investigators by accusing them of absconding with classified documents.

Senator Feinstein (D-CA) says she has been reluctant to bring this out into the open, having attempted to solve the problem privately with CIA director John Brennan. On January 15 of this year, Feinstein reports, Brennan asked her for an emergency meeting and disclosed that agency personnel had carried out a “search”–his word–of the SSCI’s investigative computers. Two days later the SSCI sent Brennan a letter protesting the intrusion and citing constitutional separation of powers as precluding CIA actions of this sort. On January 23 Feinstein sent Brennan a further letter asking a dozen specific questions about the CIA intrusion, including a demand the agency reveal the full scope of its hacking. In Feinstein’s account, “the CIA has not provided answers to any of my questions.”

All of this, as related here previously (see my posts of March 6 and March 7) concerned the already-notorious “Panetta Review.” In her Senate speech Feinstein now provides details on just what went down. The story goes back three CIA directors–to when General Michael Hayden led the agency. Hayden explained away the CIA’s destruction of the torture tapes by saying that they were not destruction of evidence, they were meaningless because everything that had been done to CIA prisoners was recorded in cable traffic, which he offered to show the SSCI. Senate staffers spent many months going through these cables and came back with a chilling report– what had been done to prisoners was “far different and more harsh” than CIA had represented to Congress. It was at that point, in March 2009, when the SSCI initiated its CIA torture investigation. Then-agency director Leon Panetta held out for the alternative of SSCI using agency offices for its research. Feinstein accepted that arrangement.

In May 2010 SSCI investigators discovered that documents previously available on their computers had disappeared. This involved 870 pages or full documents in February 2010 plus another 50 that May. When asked, CIA liaison personnel first denied anything had been removed, then attributed this to agency IT people, then said the White House had ordered the action. The Obama White House denies issuing any such order.

After that the SSCI investigators found the Panetta review. The Senate committee deliberately decided to bring that document back to SSCI’s premises because of the precedent of CIA’s earlier destruction of the tapes, the fact that the review differed so substantially from agency claims that the document’s continued existence was endangered, and the fact that CIA had earlier infiltrated the SSCI computers and removed materials from them.

In late 2013 the Senate committee officially asked CIA to provide the Panetta review. Director Brennan has refused to do so, and on bogus grounds I shall not go into here. Equally ominous, CIA’s general counsel filed a crimes report with the Justice Department against the Senate staff. (This goes beyond the action of the Inspector General in simply referring the case to Justice.) That CIA lawyer was working with the agency’s Counterterrorism Center when the agency destroyed the torture videotapes in December 2005.

It should not be necessary to say this, and even less to do so again–the CIA is out of control. The cover-up is ongoing. It now threatens proper constitutional control over intelligence activities.

The Fire Behind CIA’s Smoke

Posted on by
Reply

March 8, 2013– The Central Intelligence Agency’s defense to charges that it has been spying on Congress is that it was simply investigating mishandling of classified information, a legitimate function. In this rendering all the documents the Senate Select Committee on Intelligence (SSCI) was studying for its review of the CIA torture and black prisons programs were supposed to stay within the room the agency had set aside for the SSCI researchers. Instead, the story goes, an SSCI staffer printed up a copy of one particular document and took it with him to the intelligence committee’s offices on Capitol Hill. The case of the purloined document, we are told, has now been sent to the FBI for further inquiry.

I’d have more sympathy for the agency’s point of view if the context were different. What is problematic here is that the charge against SSCI represents a counterattack by an agency embattled, essentially a political move. If this were football, it would be a goal line defense. More disturbing, this CIA action was not taken in isolation, it forms part of a pattern that stretches back to 2005.

First, consider the specifics of the purloined document. It has now been widely reported that this was a copy of the “Panetta Review.” Leon Panetta was President Obama’s first CIA director and ordered up an internal study of the effectiveness of the agency interrogation program. Panetta wanted to get a feel for the contents of the range of documents the CIA was agreeing to let the Senate access. The review consisted of several different papers and reportedly concluded the project had yielded little of value.

Three things are significant here. First, this was not some low level analyst expressing a personal view, it was a major postmortem done in response to the director’s instructions. Second, because it was a major report it was compiled on the basis of all agency records, thus it represented a considered point of view. Third, the reported conclusions of the Panetta review are markedly at odds with the CIA’s representations to the Senate investigators, who were told the interrogation programs had been very successful–a position the CIA continued to maintain in its response to the completed SSCI investigative report. All of this without informing the Senate committee, its legal overseers, that the Panetta report even existed. —And, it should be added, without the CIA taking the Panetta Report’s conclusions into account in its response to the Senate committee investigations.

(To be facetious for just a moment, what you have is the CIA pretending the Panetta Review did not exist, and later demanding criminal indictment for someone who showed it did. Either the report did not exist, so there is no issue about revelation; or the report did exist, and the CIA is at fault for not bringing it to the attention of investigators.)

You can imagine the consternation an SSCI staffer felt when he encountered the Panetta Review among CIA records. It is understandable that a Senate staffer would think this a crucial discovery and decide the members of the intelligence committee needed to see the full text immediately.

According to McClatchy News, the agency now says a Senate researcher acquired this document early in the SSCI inquiry, and did so by breaching a firewall between the material to which the investigators had access and the larger body of agency records.

The CIA’s latest squirm on the hook is that since the Panetta Review was conducted in 2009 it fell outside the purview of the agency’s agreement with the Senate committee, which was to cover material only up to the point when the black prisons were abolished, which had occurred in 2006. This represents the same kind of literalism and myopia with which Langley deals with outsiders–a review compiled in order to get a sense of the documentary terrain the SSCI was being access to is denied because it was created later. An argument can still be made that the Panetta Review was derivative of the covered documents and therefore should have been available to investigators.

That does not excuse an SSCI violation of rules on the handling of classified material, but it remains an unknown here what precise arrangements the SSCI and CIA had agreed to, and in this case those rules needed to be weighed against the national interest. Moreover, within the CIA a violation of document handling regulations is viewed as an administrative matter, where here it has been referred to the FBI for criminal investigation.

How did the CIA know of the purloined document? An answer to that question is necessary. Until senators began asking questions about the discrepancies between the agency’s official response to the SSCI report and CIA’s internal postmortem on the torture, the only way to have known would have been by tracking the keystrokes, file openings, and downloads on the computers used by SSCI researchers. Here we get to the charge that the CIA was spying on the Congress. The best case from CIA’s side would be that it found out only when SSCI members raised the discrepancy issue, and that it then conducted a standard security review, uncovering the breach. But this data is only recoverable if it was being collected in real time, when the SSCI researchers were on CIA premises. So either way the agency was spying on its overseers.

The latest development here is precisely along this line: a CIA claim that it became aware of the leak when Senator Mark Udall (D-CO) brought up the discrepancies in December 2013, and then wrote President Obama in early January of this year asking that the Panetta Review be officially released. The CIA then searched its computer “audit log” and discovered the breach. This plays both ways–it confirms the CIA was collecting data on the Senate investigators in real time.

One troubling point that remains concerns dating–the claim that SSCI discovered the Panetta Review early in its investigation, the handover of the CIA response to the Senate report in June 2013, then the delay until December 17, when Senator Udall first mentioned the discrepancy between the CIA response and the Panetta Review. During that interval agency officials and SSCI representatives had met for more than sixty hours specifically to talk over their differences arising from the CIA response and the SSCI report. If the Senate intelligence committee had really had the Panetta Review from an early date, surely the matter of CIA internal discrepancies would have come up then. This casts doubt on the CIA claim as to timing.

The CIA Inspector General, David Buckley, has referred the computer monitoring to the Justice Department for its decision on whether to open a criminal investigation.

Now let’s change the lens and look at the Big Picture. The CIA’s attack on Congress today mirrors its unprecedented action in 2007, when it conducted a security investigation against its own Inspector General. Then as now the allegation was leaks, i.e., mishandling classified information, but the context was the release under the Freedom of Information Act of an expurgated version of the IG’s internal inquiry into the CIA torture, which gave the public its first authoritative knowledge of the program. Before that, in 2005, when the CIA project first leaked, agency officials conspired to destroy evidence–the now-notorious videotapes that documented CIA torture. I have made some ascerbic remarks regarding the memoirs by CIA lawyer John A. Rizzo (see “Tone-Deaf CIA Lawyer,” March 1, 2014), but one thing his memoir makes crystal clear was that the tapes were destroyed in the face of clear orders to the contrary. The second Bush administration’s Justice Department dealt with CIA torture with a very light hand, choosing to prosecute only two tangential cases where death had resulted. But the pattern of CIA actions raises the question of how responsive the agency actually was, in supplying evidence both for those cases and for the Justice Department’s investigation of the torture tapes’ destruction.

Meanwhile we still have the fact that the CIA has been sitting on–and is still dragging its feet–not only on release of the SSCI report on CIA torture but on its own response. It is now fifteen months since the senate study was sent to the agency. –And senators on the intelligence committee have been saying that the CIA response itself makes claims regarding the SSCI study that are simply false. The former CIA general counsel, Stephen Preston, who had told senators that the agency’s response to the SSCI study had been “appropriate,” later took pains to distance himself from it. “I did not personally participate in the [CIA] team’s formulation of substantive comments,” he told the Senate Armed Services Committee, “nor did I independently review the factual basis for their findings and conclusions.”

It is difficult to avoid the conclusion that a CIA cover-up is in progress. There is real fire behind this smoke. As I wrote in The Family Jewels these kinds of abuses follow a pattern–and the Central Intelligence Agency is replicating that pattern right now.

(This article was posted originally on March 7, it has been updated to reflect developments of that day.)

CIA Bamboozles Congress–Again

Posted on by
Reply

March 5, 2014– You read it here first! I’ve commented repeatedly in this space on the enormous gaps in, and frailty of, congressional “oversight” of U.S. intelligence. The point has been made repeatedly in my coverage of the National Security Agency scandal but it also appears in pieces I’ve posted about the CIA. Now we’re back in the soup again. The McClatchy News Service first reported, and today’s New York Times confirms, that the CIA, far from acquiescing in the legal right of Congress to oversee the agency, has been spying on Congress.

A month ago a fairly extensive analysis appeared here (“Should We Depend on Intelligence Oversight,” February 1, 2014) on the byplay between the agency and the Senate Select Committee on Intelligence regarding the committee’s investigation of the CIA torture program and its black sites. That column discussed how the agency was sitting on the Senate report, refusing to send it back for public release, because CIA careers and rice bowls are on the line. The new Times report indicates the spooks went further than that–CIA officials hacked the computers which it, itself, insisted that Senate committee staffers use in examining the documents it provided to investigators. This attempt to find out how the Senate discovered internal CIA documents which contradict the agency’s official position (that the conclusions of the Senate inquiry are wrong) is a violation of criminal law.

Sources have confirmed that the agency’s Inspector General has conducted an investigation into this spying. The latest information is that the IG has referred suspects in the case to the Justice Department.

All of which is the very antithesis of the principle of oversight. Here we have the watchers spying on those whose charge is to monitor them. This new excess joins an already lengthy list of irregularities that I documented in my book The Family Jewels . “Chilling” barely covers the implications here.

On March 4 Senator Mark Udall (D-CO) wrote a letter to President Obama regarding the torture report’s release, alluding to the impropriety, and requesting that CIA be stripped of the authority to rule on declassification of the document. This is a follow-up to a letter back in January to which Obama never replied.

So guess what? We’ve been here before. The whole notion that an executive branch agency has the authority to regulate what information can be released by Congress is a product of the “Year of Intelligence,” the time of The Family Jewels. More specifically that custom arose from the dealings between the CIA, President Gerald Ford, and the House Select Committee on Intelligence chaired by New York Representative Otis G. Pike, who recently passed away (see “We Miss His Integrity Already,” January 22, 2014). It is a fiction.

So all can understand just what happened here let me relate that story. Pike’s committee had a broader writ than the Senate torture investigation. It was empowered to look into every aspect of U.S. intelligence. The CIA loathed the whole thing. On the other side of Capitol Hill a similar committee under Idaho Senator Frank Church was doing the same thing. Just as with the recent torture investigation the CIA laid down ground rules for what the inquisitors could see. It even drafted the texts of secrecy agreements congressional staff were supposed to sign before being granted access. Their actions were closely monitored by the White House. President Ford designated his counselor, John O. Marsh, to ride herd over the whole thing, backed by none other than Dick Cheney, then the deputy assistant to the president (his boss at the time was Donald Rumsfeld).

At Langley, CIA headquarters, there was early confidence that the agency could keep the lid on the investigations. But these gradually developed their own leads (the Church inquiry into assassinations, for example) and went in directions the agency feared. At a hearing on September 10, 1975, the Pike committee let out four words of a National Security Agency cable that was top secret. The Ford administration seized the opportunity to demand that the committee return all classified documents in its possession and refused to provide any further information. It did not matter that Henry Kissinger, then secretary of state, had given the same information to reporters already.

This maneuver led to a major crisis between the Congress and President Ford. Then, as now, the administration had its spies on Capitol Hill, in this case the Republican members of Pike’s committee. But the White House was aghast to discover that even their congressional allies agreed that the committee had the right to any information it required to fulfill its duty. At the White House Jack Marsh crafted an “action plan for the defense of the agency.” As a CIA lawyer observed on September 22, “The Action Plan is much broader than simply the confrontation . . . . It deals with the future in terms of Executive and congressional oversight.” The Pike committee insisted upon its prerogative to release any information it considered necessary. It began considering Contempt of Congress citations for officials. It subpoenaed documents.

Ford sought legal advice, in house, from the Department of Justice, and CIA did its own analysis. White House lawyers did not give him much comfort. In a September 23 memorandum the president was told that Congress might not have the power to declassify information, “but it has the power to publish the document in its possession.” The Attorney General advised that the president could withhold information–and Henry Kissinger demanded it–but as a political matter that represented the highest risk option.

The same day Pike Committee lawyers told their principals, “the CIA is a creature of Congress, created by statute of Congress . . . . In other words, notwithstanding that the agency is a member of the Executive Branch it is created by Congress. If the subpoena is defied it raises the spectre of Frankenstein. That is, an agency created by Congress, funded by Congress is set loose in the world without any ability of its creator to control its acts, let alone examine them.” Pike stood his ground.

A sort of negotiation ensued. Some of the subpoenas were flawed, being addressed improperly (to the National Security Council for State Department information, for example), but the Pike committee was properly constituted, had the power to do this, and could legitimately regard any less than full response as failure to comply. Finally the sides cobbled together an arrangement under which the CIA would “lend” its documents, and before releasing anything to the public, the Pike committee would “consult” with the president on whether there was any national security objection to their release. President Ford adopted the device of asserting executive privilege each time one of these issues came up.

There is much more. The crisis went on into January 1976. Pike sought a contempt citation against Kissinger. Ford suppressed the Pike Report itself. Significantly, the legal advice then was that the president might succeed with a national security claim but that this dispute between Executive and Congress might very well be held a “political question” by the courts, so Ford’s chances were no better than 50-50. The president instead took the course of lobbying the House to vote against releasing Pike’s report, and in that he succeeded.

It is significant that in the draft recommendations which Otis Pike sent to his committee members on December 19, 1975, he included the provision that “Each such committee [dealing in national security] should be authorized to recommend that specific classified facts and documents be made public . . . after . . . giving careful consideration to the judgment of the executive branch,” with the final determination to be made by senior House leaders. This did not survive into the final set of recommendations, which instead provided that “classification of information be the subject of the enactment of specific legislation.” Forty years later, Americans still lack that protection against malfeasance and abuse.

(Note: I shall tomorrow post the Pike draft recommendations as a Hot Document on this site.)

Bottom line? President Ford relied upon the power of executive privilege to keep the documents secret, not on national security per se. The Pike Report was spiked as a political act, not a matter of security classification. The Church Committee did, in fact, release its Assassinations Report over Ford’s objections. And Section 4 of Senate Resolution 400, passed in 1976 to create the Senate Intelligence Committee, explicitly provides for the committee to declassify information, under a procedure similar to what appears in Pike’s draft recommendation.

The latitude Congress has given the Executive Branch in the release of national security information is a courtesy, not a matter of law. There is apparently some inkling of this within the Obama administration right now. The journalist Jason Leopold filed suit against the Department of Justice last September to compel the declassification of the 300-page executive summary of the Senate torture report. This past January the Department moved for a summary dismissal of the suit on the grounds that the Senate report is a “congressional record” and not an agency document.

The Central Intelligence Agency no longer deserves to be accorded courtesy in the matter of the Senate intelligence committee’s torture report. The Senate should simply release its investigative study. Forthwith.

 

 

Tone-Deaf CIA Lawyer

Posted on by
Reply

March 1, 2014– Midway through his gossipy, score-settling memoir, former Central Intelligence Agency (CIA) acting general counsel John A. Rizzo drops the line that his boss of the mid-90s, director of central intelligence John Deutch, used to make remarkably tone-deaf public comments. It’s a charge you might very well want to apply to Rizzo himself. I wrote about the CIA lawyer at some length in my book The Family Jewels.

Back in the Deutch era, when the CIA was caught misleading Congress by failing to reporting that agents in its employ had had a hand in torture and murder–including of American citizens in Guatemala–the CIA boss ordered a review of agency assets for others with blood on their hands. Among others, the Counterterrorist Center’s best spy had been involved in an attack in which Americans had been wounded (the intent had been to kill). CIA hired him later, when remorse led the man to change sides and supply them intel. The agency had never reported the man’s past to the Justice Department–as it is obliged to do–or to the congressional oversight committees. When it got around to doing so after the Guatemala affair this information promptly leaked to the New York Times. Agency officers warned the spy he might be outed and the man disappeared, never to be heard from again. Rizzo seems to want to say, and half-implies, that the spy’s former comrades did away with him. The CIA lawyer then condemns Times reporter Tim Weiner for going ahead with most of this story, and after that trounces him for not mentioning the affair in the book Weiner wrote later about the CIA. (Just parenthetically, Weiner’s CIA history basically stops much earlier than this 1990s episode.)

Fast forward to the drone war of today. John Rizzo was the CIA lawyer at the center of the agency’s “kill list” of people to be taken out by drones. Rizzo essentially bragged about his role to Newsweek reporters for a feature article that magazine published in February 2011. But when nominated for CIA general counsel, at Rizzo’s confirmation hearing he was much less forthcoming to the congressional overseers. And in his memoir Rizzo does not mention his role, or deal with the drone war at all–except to express the antiseptic opinion that he thinks drones are here to stay. Looks just like the offense of which he accuses the journalist.

This is a guy who wore a flaming pink polo shirt on a field visit to a CIA black prison, who finds nothing objectionable about the Justice Department “torture memos”–which he, in fact, solicited–and who shellacks the Bush White House for getting cold feet mid-course. The polo shirt incident led his CIA security man to ask sarcastically why he didn’t just paint a bull’s eye on his back. So who is tone-deaf here?

There is at least one CIA excess which Rizzo does find outrageous. That is agency operations chief Jose Rodriguez’s gambit in November 2005 to destroy videotapes documenting CIA torture at the black prisons. Rizzo recounts that he had never felt as upset and betrayed as he did the morning he found out about it. But Rodriguez’s maneuver was of a piece with countless things that John Rizzo spent a thirty-four year career justifying, and at times contriving.

Obama : Syria/NSA = Eisenhower : Dien Bien Phu

Posted on by
2

January 29, 2014– This is about history, or more precisely what  presidents learn, or think they learn, from history to apply to their current headaches. Many of you will be familiar with the kinds of word associations that college entrance exams delight in confronting us with. Here I want to make an analogy between President Barack Obama’s present approach and one attributed to President Dwight D. Eisenhower, to argue that it is indeed possible to learn wrong things from history.

The episode from the Eisenhower years occurred in 1954. It was a Far Eastern crisis, one in Vietnam. In the last year of the French war there, our ally’s Expeditionary Corps trapped itself into a hopeless battle against a Vietnamese revolutionary army. Paris, aghast at the specter of defeat, appealed to President Eisenhower to save them. “Ike,” as he was familiarly known, was sorely tempted to intervene with air strikes in support of the French. If those did not work, he recognized that he would have to commit American ground troops.

Ultimately President Eisenhower did not intervene at Dien Bien Phu. I mention the crisis because of the similarity between actions Mr. Obama has taken recently to one explanation for Ike’s course in 1954. The conventional wisdom on Dien Bien Phu is that Ike worked with a “hidden hand” deliberately to avoid intervention by insisting that Congress approve the proposed action, safe in the knowledge that it would not do so. I happen to think that explanation is false. As I argue at length in my new e-book, Operation Vulture: America’s Dien Bien Phu, the president worked to further the intervention project far more assiduously than can be accounted for by an explanation which posits that he opposed this course. We shall see how that historical debate fares, but for our purposes in today’s posting it is the supposed historical lesson of the consensus–the desirability of “hidden hand” action–which frames the point.

Last summer and fall an extended debate raged in the United States over whether the U.S. should intervene militarily in Syria to support a popular uprising against the ruler of that land. Much as Mr. Eisenhower, at Dien Bien Phu, had been trapped by policies he had set and promises made to France; President Obama had been caught in his threats to retaliate against the Syrian government if it were found to be using chemical or biological weapons against its people. When evidence emerged the Syrian regime had done exactly that, Mr. Obama was on the hook. His response? Obama insisted that Congress approve the proposed intervention.

Much the same thing happened with regard to the Snowden revelations and the National Security Agency (NSA) scandal. That issue also emerged last summer. Mr. Obama’s first response was to solicit a national debate on the legal, constitutional, and privacy issues involved in the NSA’s eavesdropping. Privately he ordered intelligence agency chiefs to offer options that might make the dragnet more palatable, and appoint a blue ribbon commission to review the practice. Another review was carried out by an independent agency, the Privacy and Civil Liberties Oversight Board (see “Funny Name, Serious Business,” January 23, 2014).

We now know that President Obama approved of this domestic spying all along. As reported by journalist David Remnick in The New Yorker of January 27, Mr. Obama felt no ambivalence about this: “I actually feel confident that the way the NSA operates does not threaten the privacy and constitutional rights of Americans and that the laws that are in place are sound, and, because we’ve got three branches of government involved . . . it actually works pretty well.” Despite Obama’s feelings, last month his blue ribbon commission reported out a study starkly critical of the domestic spying and a federal judge ruled it probably unconstitutional. Three weeks ago the oversight board emerged with an even darker view (see “Independent Agency Study Trashes NSA Claims,” January 24, 2014). Obama’s response? On January 17 he gave a speech accepting the criticisms of the NSA spying, and proposing a number of reforms that he says should be enacted by Congress.

Last night President Obama presented his 2014 State of the Union address. Among its more important features was Mr. Obama’s lambasting of Congress for its inability to act on anything. The president promised to move forward on social issues by means of executive action if Congress will not cooperate. Of course the political gridlock on Capitol Hill has been evident for a long time, since before Mor. Obama took office, and Republican obstructionism became even more strident with him in the White House. Obama’s speech makes perfectly clear his awareness of this factor–and his willingness to proceed unilaterally. Why, then, on two critical issues–Syria intervention and NSA reform–insist that Congress move the ball forward?

One explanation, cynical but not unlikely, is that the president did not want anything to be done on these matters. This certainly concords with Mr. Obama’s expressed view on the NSA spying, and it is a good fit with his need to escape entrapment on his own laying down of “red lines” with the Syrians. Obama has been playing with Dwight Eisenhower’s “hidden hand” deck.

If Barack Obama drew these lessons from history, they are the wrong ones. Let’s go back to Dien Bien Phu, and Vietnam. The hidden hand approach neglects consequences. After Dien Bien Phu these tactics left Eisenhower with no alternative but to support a South Vietnamese government that progressively embroiled the United States in a war. By not addressing policies the tactics put the U.S. on a track from which there was no escape, except by doing the very thing Ike’s supposed course sought to avoid. At the same time, because the hand is hidden a president builds little constituency for his actions. The effect is thus inherently limited. It is distressing that history can offer the wrong lessons and be invoked in support of dubious courses of action.