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.

Obama’s Legacy on Torture

December 16, 2016–With Barack Obama’s presidency rapidly drawing to a close there will be reflections on his accomplishments in many fields. In this one, on CIA torture, the record is distinctly mixed. The president declared his rejection of it, acted to end it, and then opened the door to continuation of these abominations. Obama assertedly did what he did because he wanted to look to the future rather than the past, but his administration has made it possible to turn back the clock.

In his very first days in office President Obama issued an executive order explicitly ruling out torture, limiting all entities of government, CIA included, to interrogation techniques listed in standard military field manuals. In a panic the CIA rushed to get the president to change a companion order that restricted custody and closed black prisons to permit it to still handle prisoners. The public clamored for a “truth commission” that would probe the dark arts practiced by the CIA in the war on terror. The spooks quaked in their boots. Mr. Obama, who had denounced torture in the U.S. Congress and on the campaign trail, looked ready to go the distance.

The president’s decision process remains murky even today. Instead he employed an intermediate strategy, ruling out any truth commission, simply declassifying the amazingly flawed legal memoranda used to “justify” CIA torture on George W. Bush’s watch. Even there he battled CIA officers desperate to prevent the opening of this material. The showdown came at an Oval Office confrontation between Obama and a slice of CIA brass in the spring of 2009. The president left his attorney general to decide whether or not to prosecute any CIA officers for actions in torture or such concomitant transgressions as obstruction of justice.

Attorney General Eric Holder kept the potential targets of these investigations on tenterhooks for a time, but one by one he took prospective prosecutions off the table. By then, of course, the Senate Select Committee on Intelligence (SSCI) had begun its inquiry into CIA torture, which led the agency back onto the dark side as it strove to monitor the investigators and minimize their impact. The SSCI inquiry, and its torture report, completed in December 2012, dragged the White House directly into the center of the torture issue–and there Barack Obama failed to rise to the level of his convictions.

While the CIA was still at the level of surveilling the senate investigators, CIA actually stole documents from SSCI computer databases and justified its action as coming on White House orders. Presidential counsel denied that–but Obama’s lawyers never obliged the CIA to restore the purloined records. Once the SSCI report had been completed, the CIA dragged its feet on permitting its release. President Obama, who had publicly expressed support for opening the report, did nothing to hasten this action. When pressed to declassify the report himself, Obama gave the job to the CIA. When the CIA again stood intransigent, Obama had a senior official of his own staff act as mediator, primarily taking the CIA’s side. All these things helped the CIA evade accountability.

Barack Obama no doubt saw himself as protecting government officers who had carried out distasteful orders. But the practical effect of these actions has been to signal that CIA operatives can, with impunity, go so far as to torture. Enter a new presidential candidate–now president-elect–who promises far worse than waterboarding for CIA detainees. That Donald Trump can do that is possible, to a considerable extent, because of what Barack Obama did not do.

With no fanfare, shortly after the 75th anniversary of the Pearl Harbor attack, President Obama reportedly designated the Senate torture report as a “federal record.” This act will supposedly prevent further efforts to shred all copies of the SSCI report and totally erase it. That is too little and too late. Had there been a truth commission, had CIA officers been prosecuted for criminal activity, it would now be abundantly clear that torture is beyond the pale. Instead it is quite likely the American public will have to have this fight all over again. This will come out as a significant failure of Barack Obama’s presidency.

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.

CIA Torturers Talk Back

September 9, 2015–Remember last December, when the Senate intelligence committee released its investigative report on CIA torture programs? Many CIA officers, principals in the story, mounted an across-the-board effort to discredit the SSCI investigation, spin doctoring every aspect of the Senate report. The former officials put up their own website, flush with copies of op-eds, transcripts of interviews, and an array of documents declassified to support their position. The former agency officers have seemed quiet of late–not even adding to their website–but it turns out this was simply because they were repackaging the same information in book form. That book is being released today.

I kid you not when I say the website involved many principals in the sorry story of CIA torture, otherwise euphemized as the “RDI Program,” for rendition, detention, and interrogation. Editor of the new book is Bill Harlow. Mr. Harlow previously served as the CIA’s top public relations man, and he is the coauthor of the memoirs of both agency chief George J. Tenet and gung ho spook Jose Rodriguez. Both of them are contributors to the new book too. So is Michael V. Hayden, a man who loved operations, held the reins as the last prisoner was tortured, moved heaven and earth to keep CIA’s authority to torture intact even after President George W. Bush shut down the program, and is cited in the Senate report as systematically misleading Congress on what had been done. A third agency director who contributed to this new bit of PR, Porter J. Goss, is the man who stood aside while clandestine service director Rodriguez engineered the destruction of videotapes that documented CIA officers engaged in criminal acts–an obstruction of justice.

Both website and book are contrived to rebut–indeed that is the book’s title–the Senate intelligence committee report. In fact Rebuttal is built around the June 27, 2013 CIA response to the Senate report, for which the agency held up declassifying the investigation in the first place. The idea that this agency rebuttal hasn’t received sufficient attention is just wrong. First off, Senate investigators and CIA officials met multiple times to discuss the substance of the agency’s objections to the Senate report. If you look at the Senate report you’ll find many instances where the investigators take up specific claims in the CIA rebuttal and introduce additional evidence to counter them. I am told there are also places where the investigators accepted agency contentions and changed their text to accommodate them. In other words the CIA response has already been taken into account. The agency’s rebuttal document is nevertheless worded as a wholesale rejection of the Senate report.

Second, the CIA response is not so coherent anyway. Langley’s general counsel, Stephen Preston, would be appointed the Pentagon’s top lawyer in the course of the haggling over the Senate report. As part of Preston’s nomination hearings he was obliged to answer questions regarding the CIA’s preparation of its response, in which the general counsel had a supervisory role. Preston described a process where CIA director John O. Brennan simply farmed out sections of the Senate report to different officers for each to refute, where no one read the entire text of the Senate investigation, where the emphasis was on scoring points rather than reflecting on the evidence, where the Senate’s text was manipulated so as to optimize it for refutation.

For example, there are twenty major conclusions of the Senate investigation. The CIA rebuttal also contains twenty sections that are labeled replies to Senate conclusions. Not a single one of the CIA rebuttals corresponds to that numbered and labeled conclusion in the SSCI document. This makes a jumbled up hodge-podge of the Senate report. Its last two conclusions are not even taken up in the CIA response, several others were addressed only indirectly, and Langley’s mavens put words in the Senate committee’s mouth, making up an alleged SSCI conclusion, apparently so that it could use the phrase “saved lives.”

“Saved lives” appears in the name of the CIA’s officers’ website as well as in countless agency statements, speeches, and claims. If asserting a thing makes it so, in the classic propaganda technique, then this debate would have been over a long time ago. But like Richard Nixon steadfastly asserting his innocence in Watergate, the issue won’t go away because it is real. There is a fire behind the smoke and mirrors.

Lawyer Preston insisted that he had no writ to ensure the CIA responses were accurate or responsibility for the overall document, and made only spot contributions to its contents.

Asked about the forthcoming work that embodies the CIA response document, Senator Dianne Feinstein says, “”The new book doesn’t lay a glove on the factual accuracy of the Committee’s report.”

The truth about the secret war against terrorism is that the CIA and its cohorts replicated every one of the abuses that got the agency in trouble in the 1970s, this time on a global scale.

From the standpoint of citizens attempting to obtain accountability from their government institutions, the coddling given this crew of CIA officers is also deplorable. The fight over getting the Senate report released went on for nearly two years. During the last six months of that time the cabal were actively planning to counter the investigation before it was declassified. It took time to create and design their website and to obtain content for it. In particular, declassification of documents is an issue here: the CIA crew obtained preferential treatment in the declassification of documents. In fact, it appears that CIA work product may have been created especially to be released to this cabal (an Office of the Historian paper on CIA-congressional relations to uphold the claim the agency was square in its briefings to Congress). The bulk of these documents were released in September and November 2014, in good time for them to be placed on the crew’s website before release of the Senate report that December 8. In addition, the secrecy mavens were quite permissive in what they released to this crew, providing, for example, virtually complete versions of CIA records that the American Civil Liberties Union had already applied for, been denied, sued, won the case, only to be given completely gutted redactions.

The fact is that this whole crew–there are plenty more in here whom I haven’t named–have been treated with kid gloves so far. They are lucky to have escaped prosecution. Not satisfied with that, the crew apparently wants Americans to sign on to the monstrous acts committed in the nation’s name, perhaps even congratulate them for heroism (??!!?). Too much more of this and the thinning veneer of protection may be stripped away. Less swagger needed. Like the classic image of the spy these fellows should be gathering their cloaks around them and disappearing into the night.

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.

The Church Committee at 40

May 29, 2015– It has been four decades since the “Year of Intelligence,” 1975, when United States intelligence agencies were investigated in depth by a presidential blue ribbon panel (the Rockefeller Commission), the Senate’s predecessors to today’s oversight unit (the Church Committee) and a House of Representatives investigative panel (the Pike Committee). Nothing like this has happened since. The work of the Church Committee has been the most lasting. Denizens of the secret world mostly recognize that investigation, where, increasingly, even they profess not to have heard of the others. After four decades what is there to remember?

A lot, according to former members of the committee, who assembled in Washington yesterday under the auspices of the Brennan Center for Justice of New York University. Heading the group was Walter F. Mondale, who went from his experience with Church to become the 42nd Vice-President of the United States; and former U.S. Senator Gary Hart, another member of the committee, along with its chief counsel, Frederick A. O. Schwarz, Jr. Also on the podium was Loch K. Johnson, a Church committee staffer. A variety of other members of the committee staff were in the audience. The event proved a combination of reunion and clarion call.

The Church Committee investigation has been mentioned many times in this space and it was instructive to see that members and staff have watched recent developments in U.S. security policy with increasing concern. Vice-President Mondale says that he is a strong supporter of President Barack Obama and admires him very much, but that what Obama has done with U.S. intelligence has been disastrous. The government’s excessive reliance on legal arguments hinged upon so-called “state secrets” is deplorable. The Foreign Intelligence Surveillance Court (FISC)–which the Church Committee was instrumental in the creation of–has gone far beyond its intended role as a magistrate to become a court of general jurisdiction. Now in competition with other federal courts, and serving the intelligence agencies as their secret, special court with no outside interference, the FISC has become a runaway locomotive.

Senator Hart commented that the historical question is why no inquiry like that of the Church Committee had previously been carried out. “It was a hugely disillusioning experience,” he remarked. “There were dark sewers beneath the city on the hill” And the committee had to fight for every scrap of evidence the intelligence agencies eventually allowed them to see.

Outside the formal sessions Church committee veterans to a man (no women staff were at the event unfortunately) were appalled at the breakdown of legislative oversight of U.S. intelligence that has since occurred.

Under the rubric of strengthening intelligence oversight, eighteen of the Church committee veterans, including both Mondale and Hart, signed on to a Brennan Center policy paper that envisions using the Church committee experience as a model for a new investigation of the U.S. intelligence agencies. Their idea is similar to, although less comprehensive than, the inquiry I laid out in my book The Family Jewels and fleshed out in the paperback edition of that work.

It is increasingly clear that public concern over the excesses of our security services is growing. In my view the intelligence agencies actually have a great deal to gain from a new-type Church committee which examines their activities and is then able to reform them and to  pronounce them above board.

Spooky Lawyer: Who’s the Real Disgrace?

May 22, 2015–The other day I posted a piece commenting on the hypocrisy of the senior spy agency officials complaining about the New York Times action in using the full names of certain CIA officials. They did this in a letter to the editor of the Times. I noted how the law they invoked to justify themselves does not actually cover what they claim, and so on (see “Crocodile Tears: The Spooks Doth Protest too Much,” May 12, 2015). All of that was a standard ploy to intimidate–claim legal cover, assert that the alleged offense is life-threatening, and encourage the public to dismiss the opponent, in effect to kill the messenger.

The officials who cried and gnashed their teeth were, all of them, former top people at the CIA. As recounted in the post, more than a few had crossed the line of controversy themselves. Their motives in trying to knock down the Times (or anyone else who might object to high-handed CIA actions) were/are entirely transparent. But so far as the Intelligence Identities Protection Act is concerned, none of the spooks was a lawyer, so they have at least the excuse of not knowing any better.

Not so for Robert S. Litt, the general counsel for the Director of National Intelligence (DNI). It is his business to know the law. But Litt has yet to rise above the gunslingers who partner at big law firms, among whom he once walked. “The law” for them is what interpretation they can get away with at a given moment. The niceties of the Intelligence Identity Protection Act ignored, Mr. Litt denounced the Times in an interview published on April 27, saying “I think the New York Times disgraced itself over the weekend,” by publishing the names, continuing “these are people whose identities are protected by statute.”

I could not let this pass without comment. Robert Litt is the same man who conspired with the DNI, General James Clapper, to provide a fraudulent explanation for perjured testimony DNI Clapper gave Congress when directly asked if the National Security Agency is spying on hundreds of millions of Americans. The country now knows in horrific detail not only that that was/is true, but that it had been going on for years. General Clapper denied it. Fearful leader that he is, Clapper also rejected an opportunity to correct his testimony. Mr. Litt helped Fearful Leader contrive the excuse that he had been thinking about something different when asked the direct question, so his sworn testimony had therefore not been a lie.

I dissected the tortured logic of this flimsy assertion in a pair of columns early last year (both now form part of my longform “The NSA Watch,” which is available as a product on the Downloadable section of this website). Suffice it to say that both Mr. Litt and General Clapper–when preparing for Clapper’s testimony, when delivering it, and when presented the opportunity to correct the record to avoid misleading overseers and the public–refused to do so, and contrived to lie instead.

That is a “disgrace.” We are talking about government officials sworn to uphold the Constitution collaborating in perjuring testimony under oath, to mislead a duly authorized legislative body directly responsible for overseeing their actions.  Robert Litt has no business talking about anyone’s disgrace.

The Times defended itself well enough. The newspaper’s executive editor, Dean Baquet gave an interview to the same legal blog on April 29 arguing that the paper understood the CIA’s drone war as essentially a military operation and therefore felt unable to treat officials conducting it as purely intelligence operatives. In particular when, it turned out, the top guy behind the drones was a prime architect of the CIA torture program.

When do you stop going along, and begin to conduct real oversight? Conversely, when does appropriate security cross the line into coverup? Baquet was asked about Robert Litt’s assertion (repeated in the letter from top spooks to the Times) that by revealing names the newspaper was putting lives in danger. Baquet’s response: “I wish the CIA did not say that about everybody and everything.”

Just so. When top covert operator Jose Rodriguez conspired to obstruct justice, causing the destruction of videotapes that were evidence of CIA officers conducting torture, the rationale was that the tapes endangered lives.

The original rationale for the Intelligence Identities Protection Act in 1982 was that protecting names would save lives.

Let’s be very clear here: in all the recorded history of the CIA–now nearing seven decades–only one agency officer is known to have been marked for killing and then murdered. That man, Richard Welch, chief of station in Athens, had had his name in the press but had made rookie security mistakes the likes of living in a house known as the CIA’s chief residence (it was even on city tours) and not varying his route to work. Welch had been warned to take precautions and had not done so. His murderers, from a Greek revolutionary group, were later captured and revealed they had known all about the CIA man, but without ever seeing or even being aware of, the mentions of Welch in the press.

The CIA, terrified that disaffected agency officer Philip Agee was going around making a practice of blowing the covers of its people, made Richard Welch the poster boy for its campaign to obtain passage of the Intelligence Identities Protection Act.

Since the passage of that law there is no evidence that any CIA officer has been targeted because her/his name was revealed. Agency officers have died in combat, in plane crashes, in a random attack on the agency’s front gate, by suicide. I dare say–the evidence here, of course, would be secret–that more CIA officers have perished in domestic disputes than have been killed because their names were revealed.

Meanwhile the CIA uses the Act to hide the names of senior officials engaged in official business, acting in their official capacities, from public scrutiny.

The New York Times and its reporters are not sworn to uphold CIA regulations. Agency officers at a certain level of the organization should be known individuals. Equally to the point, the Identities Protection Act stipulates in defining the crime that the defendant  have engaged in a pattern of revelations of names (a la Agee), which the newspaper certainly has not done.

What is truly disgraceful is the CIA’s cynical scaremongering and its efforts to intimidate critics.

Crocodile Tears: the Spooks doth Protest too Much

May 12, 2015–In case you’re not aware of it, a couple of weeks ago (on April 26 to be exact) the New York Times ran a feature story on how the CIA, currying favor in Washington, had managed to elude criticism for its drone strikes up until this past January, when one of the mechanical murderers managed to blow up an American citizen being held hostage by the bad guys, plus an Italian hostage and other Americans who were playing for the bad guys but, still, were entitled to constitutional protections. Hinting at its distress at this state of affairs, the Times put a shot across the bow of the CIA by naming the head of the Counterterrorism Center who was dismissed after that fiasco, his replacement, and the new head of the Operations Directorate (or National Clandestine Service, depending on which musical chair you are using at the moment).

Today the Times carries a letter to the editor signed by twenty ex-CIA officers complaining of the newspaper’s action. They insist that “nothing is to be gained by ‘outing’ career operations officers” and asserting that “Congress overwhelmingly passed the Intelligence Identities Protection Act of 1982 precisely to protect” these dedicated men and women.

With me so far?

Who are these paragons of intelligence who have the virtue to cast stones? They include David Petraeus, former CIA chief convicted of leaking classified data to his girlfriend; former CIA deputy director Frank Carlucci, called in to save Ronald Reagan’s chestnuts from impeachment for violations of the Arms Control Export Act; former CIA director John M. Deutch, found to have improperly removed classified information from CIA headquarters; former CIA director Michael V. Hayden, found by the Senate’s investigation to have lied to Congress about CIA torture programs; former CIA director Porter Goss, who approved subordinates’ destruction of evidence material to a criminal investigation of CIA torture programs; former CIA director George J. Tenet, who started the CIA torture program; and former CIA director R. James Woolsey, who once said he’d have to crash a plane onto White House grounds to get the attention of the president. There are others but this is plenty to make the point.

For years now the Central Intelligence Agency has played fast and loose with its responsibilities in terms of simple public information. The names of intelligence officers is a good example. The agency routinely redacts names from documents it declassifies, and, starting with Jose Rodriguez, has now extended the practice to serving officers in senior positions. This is not admissible.

The sole basis on which the identity of an officer can be kept secret is the aforesaid Intelligence Identities Protection Act (Public Law 97-200). The law only protects serving “covert agents.” Covert agents are defined as officers of the clandestine service serving outside the United States or having served outside the United States within the past five years.

The recently-relieved officer who headed the Counterterrorism Center had been its chief since 2006–any eligibility he had to remain a covert agent expired four years ago. The named Deputy Director for Operations comes to that post from service as chief of the Special Activities Division, which does paramilitary operations. His last known overseas posting was as chief of station in Kabul. The Times did nothing wrong. Its only offense, if it be called that, was to remind the spooks of their favor in playing the CIA’s game this far.

More to the point, no CIA officer at the level of center or division chief or above, and certainly no one who is a deputy director, should ever be entitled to clandestinity. These people routinely have to deal with outside authorities including congressional overseers. Putting masks on those people makes a mockery of accountability.

Our former CIA chiefs shed crocodile tears. –And half of them have no business on this podium anyway. Accountability is the business of the fourth estate–and should be a gold coin in government. The Times names names that should have been public in the first place.