Jeff Sessions’ Looking Glass–or is it America’s?

June 14, 2017–Yesterday the nation was treated to another deplorable performance by someone who is supposed to be an American leader. In fact, as attorney general, Jeff Sessions is supposed to exhibit sterling qualities, to be the president’s sidekick in the promised draining of the swamp. Instead we saw a small man, diminished further by his squirming, jumping, running away from questions. Mr. Sessions’ responses to the questions he did answer were denials that ranged from flimsy to vague. His invocation of an alleged Justice Department policy regarding non-executive privilege refusal to respond I will comment upon in a moment. Mr. Sessions was again under oath in this meeting with the Senate intelligence committee. I submit to you the odds are better than even that before this affair ends, Sessions will be revealed to have perjured himself again in that testimony. Far from draining the swamp, Mr. Sessions is dredging it deeper.

As for the alleged Justice Department “policy,” former DOJ employees were on the news shows last night saying they never heard of it. Sessions himself, after invoking this “policy,” could not say whether it was written or something in lore, could not say if he had read it (???!?!!–which means he either has no such policy or he has such short term memory problems that his ability to serve as attorney general is in question), and could not quote it as his authority. Today’s New York Times reaches back to the Iran-Contra scandal to find an instance where cabinet officials refused to answer a question in a similar fashion. That’s a poor precedent because in Iran-Contra there was an actual constitutional transgression from which to shield the president.

Here’s what we do know: that two senior intelligence community characters, director of national intelligence Dan Coats, and National Security Agency director Mike Rogers, adopted the identical approach of refusing to answer questions on the phony grounds that the president, in the future, might assert privilege over those subjects (but had not in fact done so at the moment testimony was given). It is far more likely that Sessions’ calculation was “if Coats and Rogers could get away with this, so can I.”

Jeff Sessions squirmed through his testimony, alternately lashing out (dastardly “secret innuendo” circulated about him) or pretending to ignorance (being forced to confront vague charges glimpsed through a “looking glass”). But Mr. Sessions knows very well the story Congress is trying to find out, and he must know that his actions as attorney general have created real questions as to propriety. His plaintive cry–aimed at Jim Comey–to “tell me what” the material act was that would have obliged his recusal from inquiries into the Russian Caper–followed by his strident claim that “of a certainty” there was no such thing–will ultimately escape perjury charges only because supporters will argue they were expressions of opinion rather than assertions of fact. In the meantime the question is, will Sessions get away with his behavior.

So far he has. All through the Sessions testimony I sat waiting for the senator who would stop and say, “Mr. Chairman, point of order, this witness is acting in contempt of the Senate.” The intelligence committee, in seeking information of direct relevance to its investigative purpose, is the body following a longstanding (and written) policy. The power of Congress to investigate was set in law more than a century ago. In connection with the specific refusals by Coats and Rogers, the National Security Act of 1947 explicitly provides, “Nothing in this Act shall be construed as authority to withhold information from the intelligence committees on the grounds that providing information to the committees would constitute the unauthorized disclosure of classified information” (50 U.S.C. 413, sec. 501 (e)).

Trump administration officials are here attempting to carve out a wholly new rationale with which to deny information to Congress and the public. Democracy begins to die when executive powers believe they can act with impunity, and outside checks and balances. Sessions should have been held in contempt, not just because he was withholding information from a duly authorized congressional investigative body, but because he was participating in the construction of a wall to insulate the executive branch from proper oversight. The Senate intelligence committee demonstrated its powerlessness by failing to enforce its right to investigate. Chairman Richard Burr and the Republican members of the committee, by putting partisanship ahead of the authority of the Senate, are establishing their irrelevance. The Democratic members, by failing to pose the point of order, are acquiescing in that act. Democracy in America took a hit yesterday.

Update: Senate Torture Report

June 9, 2017–Some days are better than others. Yesterday North Carolina Senator Richard Burr seemed fairly reasonable in his questioning of James B. Comey before the Senate intelligence committee. Not long before that, Burr raised concern when he renewed earlier demands he had made that the federal executive return to the intelligence committee all copies of the SSCI report of its investigation into CIA torture and detention programs. That day was a pretty poor one.

The Obama administration took little formal action on Burr’s demand. Its Justice Department wavered on whether to declare the report a “federal record,” which would have ensured its perseveration and opened it to freedom of information requests. It ordered other agencies not to “open” their copies. The John Brennan CIA working to bury the report, interpreted that as an instruction to destroy copies in its possession. Now, under the Trump administration, Senator Burr is about to get his wish.

The publisher Melville House, which put out one of the printed editions of the executive summary of the committee study, is responding to this effort to put the report back in the secret vault by making its edition available to the public for free. Get in touch if you are interested.

Senate Intelligence Committee’s Mojo Coming Back?

March 31, 2017–Capitol Hill is a place of contrasts. The most recent is the startling difference between inquiries into the Russian Caper being mounted, respectively, by the United States House of Representatives and Senate. The House committee’s “inquiry” has been a pure smokescreen, engineered by a chairman acting as an operative of the Trump White House, in ways calculated to protect President Donald J. Trump from the consequences of his methods. (The jury is still out on what actually happened in the Russian Caper–and the appropriateness, even legality, of that–but it is quite clear that tactics used subsequently to distract attention and/or evade scrutiny are wholly unacceptable.) Democratic Party members of the House Committee are powerless in the face of California Republican Devin Nunes, the chairman. Nunes may be destroying any bipartisanship that existed among his colleagues, recasting himself as a laughing stock, but the practical effect of his actions has been to destroy the House investigation.

That leaves the Senate Select Committee on Intelligence (SSCI). Readers of this space will recall that during the time of the fight between the Senate committee and the Central Intelligence Agency (CIA) over the SSCI’s inquiry into the CIA torture program, my analysis was that the agency maneuvered to obstruct and emasculate its Hill overseers. Langley had good success doing so, enough that at the end of the day the SSCI seemed impotent. Now the Russian Caper plus the failure of the House inquiry casts the SSCI in the lead role for what probes that remain possible within the current framework.

The good news is that the SSCI, so far, seems to be stepping up to the plate. Over the past several weeks Virginia Democrat Mark Warner, the ranking opposition member and vice-chairman, has garnered most of the public attention, but has consistently held to a bipartisan approach, and said good things about how the Senate committee will proceed. Then on March 29 Senator Warner appeared with his chairman, North Carolina Republican Senator Richard Burr, at a joint press conference. For forty minutes they laid out how the SSCI will proceed, defended each other, and generally put on a good face.

Senator Burr had gotten off to a rocky start after taking the committee over from California’s Dianne Feinstein. Burr had demanded government agencies return all copies of the SSCI torture report to the committee, evidently intending to deep six the data, handing the final victory to CIA. Investigation of the Russian Caper–which calls Republican party loyalties into question–is an even more difficult proposition for the GOP senator than overseeing the agency.

But Burr and Warner are clearly together in this enterprise. Senator Warner spoke of thousands of documents handed over to the SSCI investigators, and the first public hearing the committee held, on March 30, pulled no punches, with a former FBI special agent discussing Russian active measures tactics. It seemed a good start. Perhaps the Senate intelligence committee is getting its mojo back. We’ll see.

Coming Out of the Woodwork: The CIA Purge

December 13, 2016–Already you can see the storm clouds gathering over Langley, Virginia, headquarters of the Central Intelligence Agency (CIA), which is being shunned by President-elect Donald J. Trump and seems to be headed for trouble. So much so that the “Formers,” the newfangled lobbying group of past agency directors and deputies, are coming out of the woodwork to defend it. The immediate issue, of course, is the widely-suspected Russian hacking of American political parties ahead of the 2016 presidential election, which the CIA has now concluded formed part of a purposeful intelligence operation intended to influence the outcome, throwing the election to Mr. Trump.

Trump, who has expressed sympathy for Russian leaders and is packing his appointments list with like-minded prospects, resists the analysis, CIA’s briefings, and has done nothing to keep his security adviser-designate, one-time Defense Intelligence Agency chieftain Michael Flynn, from indulging in even more inflammatory remarks. It is fair to expect a purge at Langley is in the offing.

Meanwhile the Formers are speaking with loud voices. Among the loudest is retired general Michael V. Hayden, who hardly ever misses an opportunity to grab a soapbox, and has been ranked here as a fabulist. Hayden continues telling tales in today’s Washington Post, where he has an op-ed article castigating the Trumpists with a damaging disregard for intelligence.

Mr. Hayden makes some good points–and the issue of Russian interference in an American election is a vital one–so perhaps we should not be too hard on him. But the irksome thing is that Hayden’s past fabulism weakens his warnings against dismissing the Russian intervention. Where the general, a past boss at CIA and NSA, plus a deputy chief at the Office of the Director of National Intelligence, deplores Mr. Trump’s resistance to “facts and fact-bearers,” he once said of the President’s Daily Brief (PDB)–the locus of many of these facts–that “if it’s a fact it’s not intel”–and doesn’t belong in the PDB.

In today’s sally Hayden raises the question of the statute that requires the CIA to keep Congress “fully and currently informed” on all significant intelligence activities. That’s something he resisted doing as CIA director. When it came to the agency’s torture program, for example, Hayden left Senate officials enough material at a single April 2007 briefing to fill twenty closely-printed pages with examples of misleading representations. As a matter of fact the same oversight statute Mr. Hayden invokes in his op-ed article to cite a CIA obligation to inform Congress goes on in the very next passage to stipulate the agency cannot deny anything necessary for Congress to accomplish its oversight duties–and at his confirmation hearing for CIA director General Hayden professed complete ignorance of that text.

The Formers, to include the present outgoing squad of spy chieftains, are now hoist on their own petard of misinformation, disinformation, and outright lies. Their efforts to keep the American public stoked up with fears of terrorism and other threats contributed mightily to constructing the atmosphere which enabled Mr. Trump to win this election. Now, when there is a real threat of foreign cyber action capable of disrupting American institutions, the response may be crippled by the politics of selfishness and the stupidity of partisanship.

CIA’s Brennan Senses the Abyss

April 13, 2016–If the nation’s top spook can’t see the storm clouds gathering you’d have to wonder if the spy agency is even doing its job. This week the CIA’s director, John Brennan, showed his first sign of life in some time. Brennan gave an interview to NBC News which indicates the agency is at odds with both of the candidates leading on the Republican side in the race for this year’s presidential election. On one level that is a great relief, on another it is disturbing.

Richard Engel of NBC asked Mr. Brennan if the CIA will resume waterboarding in the eventuality that Donald Trump–who has demanded aggressive torture–is elected president. (The other leading Republican, Senator Ted Cruz of Texas, has declared that waterboarding is not torture.) Either one, in office, could be expected to order resumption of waterboarding. Director Brennan replied that he would not re-authorize the euphemistically known “enhanced interrogation techniques.”

That should be a great relief to anyone who worries that America’s behavior in this subterranean conflict is providing fodder to our enemies as they seek new recruits for terrorism.

On the other hand, look at Brennan’s formulation: “I will not agree to carry out some of these tactics and techniques I’ve heard bandied about because this institution needs to endure.” Those are his words. There are a number of troubling thoughts that come from them.

First, Brennan’s statement implies that he understands–as the director told the Senate intelligence committee–that waterboarding is torture. If so, why did he fight so hard to prevent the committee’s report on the CIA torture program from coming to light? Brennan had also told the committee that he had read the portion of its report the CIA would finally declassify and would hasten to bring it to the public. Instead he continued to drag his feet for more than a year and a half.

Second, inside the agency Mr. Brennan went along with a CIA counterspy op that actually targeted Congress, and then he permitted a tainted agency lawyer to file a criminal referral to the Department of Justice in one last effort to suppress the torture report. And then Director Brennan went along with a sham process of enforcing “accountability” on CIA personnel who had engaged in this shabby activity. Every one of those actions was about escaping the consequences of CIA torture and indicates Brennan either spoke with a forked tongue at confirmation or switched sides once he arrived at Langley. Neither posture should evoke public confidence in the man.

Most troubling, there is a operative phrase in what Brennan told NBC: “this institution needs to endure.” Translated: Director Brennan understands the CIA occupies shaky ground already, and its re-engagement with controversial and illegal activities can lead to overwhelming pressures to dismantle it. The agency needs to avoid torture for its own self-preservation. That’s an accurate perception but it begs the question of why CIA did not understand this all along, and why did senior officials like Mr. Brennan permit the agency to dig its hole deeper through its stupid hacking of Congress. There will be more on this story. Stay tuned.

Michael Hayden: Voice of the Fabulist

March 12, 2016–Among the chorus of voices lifted in defense of the excesses of our intelligence agencies, when these came under the scrutiny of the Senate Intelligence Committee, was that of former Central Intelligence Agency (CIA) director Michael V. Hayden. The Senate committee report pictured Hayden as a defender of torture. Readers of this space may remember warnings against listening to Mr. Hayden that were included in posts in the wake of the Senate committee (SSCI) report. Hayden is an experienced speaker and trained briefer, smooth and unctuous. He is superficially credible, which is what makes him dangerous. Mr. Hayden is out there now, a retired Air Force general with a memoir to peddle. It’s high time to revisit the question of his believability.

A former director of both the CIA and the NSA–at the very moment it entered into the present scheme of dragnet eavesdropping–not to mention deputy to the Director of National Intelligence, Mr. Hayden had a finger in every pie. He slides by means of an m.o. where he typically asserts that he understands (this extreme view) as well as that (extreme view) covering the spectrum, and then proceeds to obfuscate.

The technique was on view last night in a lecture series sponsored by the blog “Lawfare” with the Hoover Institution of Stanford University. In that talk Michael Hayden deplored complaints against CIA for its torture of prisoners in black sites as a violation–a violation by citizens of CIA’s compact with the American people. What is that? Hayden explained that you have to check off boxes before sending an officer into the breach. Does the president approve the operation? Check. Does the attorney general? Check. How ’bout the CIA director? Yep. Does the operation have the agency’s sacraments? Uh huh. OK. It’s within the compact.

Sound good? It’s malarkey. First off, where was the vote–even the national conversation–where the “American people” agreed to that schema? It didn’t happen. Long ago George Tenet, Hayden’s predecessor several times removed, saw the need for a new national consensus on U.S. intelligence work after the Cold War, but Tenet dropped that project half way through and the quest was never resumed. There is no compact.

Second, on Hayden’s checklist there is exactly one elected official, the president. By definition the others, especially the CIA director and his minions, cannot be approval authorities for the compact. As for the president, George W. Bush–and the CIA–did their best to hide both black sites and torture, as well as the “legal” memoranda that were supposed to have justified this mess.

Insofar as torture is concerned the reality is that it is not certain the president did agree. Hayden himself admits there was much more difference between the first Bush term and Bush 2 than between Bush and Obama. Well, George W. in Bush 2 prohibited the torture (and indeed Obama followed suit). During Bush 1 George Tenet, the CIA director at the time, stopped the torture program–at least twice–because he was not sure the president approved it. Dick Cheney told the CIA President Bush approved, but Cheney also blocked every CIA effort to approach the president directly. As Hayden knows perfectly well, W.’s own assertion that he was briefed and did approve, has been disputed elsewhere. The difference between Bush 1 and Bush 2 is the leak of the black sites and CIA misdeeds, plus the increased distance from 9/11. To put it differently, permission, if there was that, went off the table the moment the public learned of the excesses. That sounds like a very different understanding of the “compact.”

Third, the attorney general (and here Hayden refers to John Ashcroft and then Alberto Gonzales–he hates Eric Holder, who is, apparently, a “true believer” against torture) is a weak reed on which to hang approval authority for a “compact.” By Mr. Hayden’s standard Attorney General Robert F. Kennedy’s knowledge of CIA plans to assassinate Fidel Castro brought them within a compact with the American people. Not likely.

(In the narrower sense, though he did not actually say so, no doubt Hayden was referring to the so-called “legal memoranda” compiled by the Office of Legal Counsel of the Department of Justice as approving of CIA torture. Not only have those memoranda collapsed, on their face, as legal underpinnings, they were given excessive importance in the first place. Legal memoranda are not laws or court decisions, and they do not substitute for law. Again, no “compact.”)

Both in speech and in his book Mr. Hayden refers to poll numbers that appear to accept the act of torture. Polls do not create a “compact.” Public opinion is notoriously fickle–and I’m sure if you could ask those CIA officers who carefully avoided the taint of these projects their reasons why, you would hear back that they knew opinion would change later and they’d be hung out to dry.

Which is exactly what’s happening to Mr. Hayden, Jose Rodriguez, and other CIA stalwarts of the interrogation programs. It’s their desperation showing. Unlike poll numbers and phony “compacts,” torture is a criminal offense under U.S. and international law, treaty law and the law of war, and associated activities are constitutional violations. There’s a reason why the psychologists the CIA hired to install its interrogation techniques insisted on coverage of legal fees for 20 years afterwards.

In various places Hayden has also made a point of trying to turn around the language. In particular in speaking of the SSCI, the former CIA director talks of the committee attempting to configure a “they say/we say” dynamic. Hayden connects the use  of the word “torture”–and others associated with the reality of what happened–with the supposedly false approach. Think about that for a minute–the CIA, an agency that specializes in deception (among its other skills), crafts a series of euphemisms (“enhanced interrogation techniques,” “high value detainees,” and so on), and then complains the public is out of line for using conventional vocabulary to discuss the issue rather than CIA’s deliberately contrived substitutes.

Tell me who is trying to impose the dynamic on this debate?

You see why you need to deal with Hayden’s logic, and his language, carefully.

In a few days I’ll have more to say about Hayden’s manipulation of secrecy and freedom-of-information while he was CIA director.

Hillary email Update

February 6, 2016–News continues to boil about secret information allegedly contained in emails sent to Hillary Clinton while she was secretary of state in the first Obama administration. The emerging record continues to confirm what I’ve said in this space: that senior officials of the intelligence agencies, with nearly a year now to pore over Hillary’s email cache, plus their own fish to fry–and demons to fear–find it irresistible to range backwards in time to cast veils of secrecy over information that was in the public domain.

Latest reports add to our point, originally taken from press reporting about the CIA drone war. Other emails apparently pertain to the North Korean missile program, and to events in the Libyan revolution. Some of the 22 emails over which classification is asserted apparently contain the special access slug “HCS-O,” which pertains to human intelligence sources, although officials hasten to add that no specific names of sources or CIA officers actually appear in the emails.

Two more fresh items add to our update. Just yesterday, it was reported, other, similar emails, containing information discussed in classified materials exists in the personal communications files of former secretary of state Colin L. Powell and national security adviser– then secretary of state– Condoleezza Rice. Powell has been quoted responding that it was understood his emails were his–and were not classified. There’s been no response so far from Ms. Rice.

The facts are not what our spooks seem to think. Global events are visible, attract attention, and trigger discussion and analysis. The drone war, to cite our starting point, is watched and remarked upon by a wide range of media outlets, human rights organizations, international entities, think tanks, and national governments (and their own security services). The fact that secret ODNI and CIA documents discuss the same matters does not make those subjects classified. The spooks’ attitude is that even specific CIA information, if it becomes available from any source (such as a leak) other than declassification by the CIA remains secret!

Plus, there is declassification and there is declassification. The CIA quietly releases secret information to an author or journalist, for example, in the expectation that books or articles will show the spooks in a positive light. Yet at the same time others who might request the same or similar information be declassified are denied, told the agency will neither confirm or deny the very existence of the information, or told outright it does not exist.

The other new development is the revelation of “eyewash”–someone’s adaptation of a term of art used by CIA disguise artists. According to these reports eyewash describes a category of documents that move over regular CIA channels that contradict memos or messages which circulate in hidden channels. This is described as a mechanism to reduce the circle of officials knowledgeable about some subject, but it’s much bigger than that. For decades we have known about backchannel and front channel–where the important message goes over the (secret) backchannel and the idle chatter on the (less sensitive) front channel. Nixon’s covert operation against Allende in Chile was facilitated by “Track II,” exactly such a device. The CIA’s destruction of its torture videotapes in 2005 was implemented by a backchannel message to a station chief that ordered that person to put in a request on the front channel, using certain specific arguments and rationales, for authority to destroy the material.

The difference between “eyewash” and backchannel is that in the former the front channel traffic is positively designed to be false.

This is described as a security technique. In its simplest form the safety of an agent is protected by giving broad distribution to the message that says the operative is dead, while tightly restricting the message that gives the spy a different codename and reports his information. For a moment that sounds OK–until you realize the same technique can be applied to deluding the Senate intelligence committee that the Panetta report had no meaning, that the CIA’s hit team operation (Project Cannonball) had long been stopped, or, indeed, that CIA remains responsive to congressional authority at all.

Such methods are worse than unacceptable. Here is an intelligence agency, whose whole purpose is to tell truth to power, where the biblical proverb “the truth shall set you free” is actually carved into the marble wall, indulging in the practice of actively lying– not to the enemy, not is a deception operation, but in official records that will be seen by anyone dealing with the agency on its business–in other words, CIA officers, their bosses, the Congress,  the president.

Meanwhile the same intelligence community is presuming to comb over the private emails of its executive branch masters, such as Hillary Clinton or Colin Powell, and denounce them for having information in messages that spooks decide in retrospect should have been classified!

This is a scam.

As I argued in some length in The Family Jewels the intelligence community has long since passed the point of safeguarding legitimate secrecy in favor of practices designed to protect its own interests–political and financial as much or more than operational. “National security” is expanded–bloated–to hide that. And what I said here last summer (“Hillary’s Emails: Bursting the Secrecy Bubble,” August 22, 2015), I repeat here today: the secrecy rules have become so bloated that senior officials can no longer do their jobs without violating them. It’s time to change the rules, not prosecute the secretaries of state. While we are at it, the CIA and ODNI need to be taken out of the business of declassification.

The CIA’s Coming Watergate

June 28, 2015–Watergate was a huge political scandal in the United States that began 43 years ago, in June 1972. It brought down a president (Richard Nixon). Due to a deadline and to preparations for the diplomatic historians conference just ended, I missed marking the occasion here. But a story in today’s Washington Post brings Watergate readily to mind, this time in the context of the CIA torture report.

The pundits made one of the lessons of Watergate out as: you get ahead of the scandal by letting all the information out, right away, as bad as it looks. Richard Nixon suffered grave political damage by sitting on the Watergate evidence and having it dragged out of him, piece by piece, until the Supreme Court compelled him to surrender the tape of a conversation–dubbed “the smoking gun” (and this is the origin of the phrase, at least in its political usage) conversation, that revealed the president actively engaged in an obstruction of justice. Mr. Nixon resigned in order to avoid impeachment.

Langley took some pretty bad political hits from Watergate. Despite the agency’s intention to steer clear, Nixon made some efforts to implicate the CIA in his growing deception campaign, plus by 1972 there were lots of Americans who had their doubts regarding the spooks. Add in the fact that some major characters in the scandal were former CIA operatives, and the way the agency had cooperated with the White House–innocently it maintained–when called on to furnish help to White House smear campaigns against Nixon critics, and you had the makings of a political problem for the CIA itself. Bill Colby, before becoming CIA director, had been employed full time on controlling the damage to the agency from Watergate, a struggle that no doubt influenced his course of action in 1975, when faced with public outcry resulting in demands for deep investigation of the CIA and other components of U.S. intelligence.

Where am I going with this? You guessed it! The CIA torture program. Today’s news is that there are photographs of the agency’s black prisons. A set that may contain as many as 14,000 shots, covering facilities, CIA persons, the notorious contract psychologists, pics of detainees, etc. Imagine what demands there are going to be to release this material! Word is that the photos became known in the course of the Senate Intelligence Committee’s investigation of the torture program, but in this age of the selfie you know it had to be true–and it would have been just a matter of time before the same demands for release of such explosive evidence surfaced.

CIA mavens have already ignored–or actively evaded–multiple opportunities to get ahead of the scandal. Indeed they have added to the controversy. The destruction of videotapes of the torture (obstruction of justice), efforts to rein in their inspector general (a violation of the CIA oath), intrusions into computer networks belonging to Senate investigators (a criminal act), attempt to obtain the indictment of Senate investigators (a violation of the separation of powers clause of the Constitution), efforts to sit on–and to gut–the Senate torture report (a use of phony “national security” appeals to disguise participation in criminal activity); stalling release of the Senate report on secrecy grounds while using the time to prepare an insider/outsider public counterattack against the investigators and their report (at a minimum, the diversion of public resources and CIA work product to support private individuals’ defense against an official inquiry); and the conduct of a phony “accountability board” review, which predictably concluded that no one had done anything wrong.

Look at that long (and lengthening) list. Getting past “Photogate” is going to require yet another addition to it. And there’s the rub– how long does the list get before there’s a Watergate-type firestorm of public repudiation? The proverbial “First Casualty” may very well be the Central Intelligence Act of 1949, the agency’s statutory authority for using national security secrecy to evade the public, and indeed, all forms of accountability. That law has clearly outlived its usefulness, and now serves as an obstacle to democracy.

The first rule of holes is to stop digging.

I guess it’s not accurate to speak of the CIA’s “coming” Watergate. The agency is  already embroiled in scandal, right up to its ears.

Tantrum to Practical: All Grandfathers are not Equal

June 1, 2015–As we enjoy this brief moment while Big Brother is a criminal for spying on you, we also need to move on the next stage of this foolish security nightmare. Last week, in the run up to the crash of Obama’s misguided attempt to resuscitate the eavesdropping law the White House, ending with Barack himself, put out way overblown claims (as seems to have become de rigeur) for the necessity for this domestic spying–which can be linked to only one case since 2001, and that for merely giving money to a Somali group. Others late in the week, to include Fearful Leader Clapper, the DNI; and John O. Brennan, guardian of the torture report; mixed in their own rhetoric. On May 25 I wrote of this as NSA’s tantrum (“Toddler’s Grandfather: NSA’s Terrible Twos Tantrum”) because senior officials had begun to go around saying that even if their legal authority expired the NSA could go on spying on everybody because the authority is “grandfathered” into law.

Well, now we have entered that unhappy state of entropy and it’s time to determine what, exactly, “grandfather” means. I am no lawyer, but I am a pretty fair wordsmith and I’m here to say the NSA’s trying to eat its cake after having it too. If they can go ahead spying just because, once upon a time, the authority existed (even though now it doesn’t), that’s way out of bounds. By that measure prohibition still exists because once it did. The death penalty remains in effect everywhere it has been repealed. Eighteen-year olds and women cannot vote because once they could not. The people who are trying to end abortion by passing legislation can forget it because that procedure was previously legal. Those who want controls on guns, same thing. Forget trying to enact EPA pollution standards. The Vietnam war is still with us because the repeal of the Tonkin Gulf resolution is meaningless.

That kind of approach effectively guts the power of law except for the first law on any given thing. This cannot be the meaning of law under the United States Constitution, nor the intention of the Founding Fathers.

A “grandfather clause” has to have some concrete current application in order to be valid. For example, my apartment goes co-op so I am in at the insider price, grandfathered so that cannot be denied to me.  With respect to NSA eavesdropping a proper concrete context would be specific investigations that were approved and in progress as of 12:01 AM on June 1.

As I understand it, our frantic eavesdroppers are now saying that “enterprise” programs are concrete contexts and therefore grandfathered in. This kind of investigation is a broad, open-ended, multi-directional inquiry, as in the phrase “we investigate terrorists.” The enterprise investigation bears the same relation to NSA surveillance as “signature strikes” do to the CIA/JSOC drone war. It’s what you do with surplus capacity that has nowhere else to go.  It’s a background tone for the sound system. This has nothing to do with concrete and pre-approved investigations.

That’s not all. In fact the blanket authorities timed out before June 1. The Foreign Intelligence Surveillance Court had set a specific deadline for NSA to apply for the next 90-day authorization of its blanket programs. The spooks did not meet the filing deadline. The authorization duly expired.

At 12:01 AM on June 1 there was no enterprise program to be grandfathered.

As has been noted in this space before, we seem to have entered a new Wilderness of Mirrors. National security is becoming the single greatest threat to democracy.

 

Barack Joins in the Tantrum

May 30, 2015–Here it is, about thirty-six hours and counting until the legal authority for several Big Brother eavesdropping activities evaporates, and now President Obama joins the fray. Does he, constitutional lawyer that he is, stand against such draconian measures, surveillance that violates the Fourth Amendment and chills the First? Does he follow the lines of the surveillance reforms he offered in a speech in January 2014? No, and yes.

I’ve written in this space before about Mr. Obama going out on a limb with his senior spooks, drinking their Kool-Aid on warrantless eavesdropping and collection against all citizens which has never yet stopped a real terrorist action. I also wrote, after the January 2014 speech, that Obama’s reforms were mostly designed to make the surveillance palatable to Americans. Here Mr. Obama has simply lined up with the security hacks–and they have become hacks–now lacking imagination or creativity, relying excessively on old ways simply because they are familiar. The hacks are throwing a tantrum (see “Toddler’s Grandfather: NSA’s Terrible Twos Tantrum,” May 25, 2015). Barack is joining them.

What the president said yesterday bears quotation: “Heaven forbid we’ve got a problem where we could have prevented a terrorist attack or apprehended someone who was engaged in dangerous activity, but we didn’t do so simply because of inaction in the Senate.” Unpack that language and you find that this is security for show, political cover. We should surveille all Americans using methods that have never been effective so that, after the next terrorist attack, we can say the bad guys could not have been apprehended with these methods ’cause we had that covered. (Of course, we can’t make that showing without the very kind of public investigation the spooks will fight tooth and nail, so what’s the point?)

Alternatively, Obama says we need this to “apprehend someone who was engaged in dangerous activity.” What is that? A door so big you can drive a truck through it. It was Ronald Reagan who said that “one man’s terrorist is another man’s freedom fighter,” and he was happy to paint black hats on those he didn’t like while pretending that vicious CIA-supported rebels–in fact the very islamist fundamentalist fighters whom we now consider the terrorist enemy– were echoes of our own Founding Fathers. “Dangerous activity” is in the eye of the beholder, and it is an invitation to even more arbitrary actions. Who’s to say what activity is dangerous? Security for show invites the arbitrary application of police power in ambiguous situations. Think of any of the police violence incidents we have been plagued now for months.

Sometimes Senate inaction can be a good thing. Let’s just let these harmful statutes expire. Write your senator and say so!