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.

The Spooks & Trump–No Match Today

August 20, 2016–By now you will have heard that this past week presidential candidate Donald Trump received his first intelligence briefing from America’s top spy organs, led by the Director of National Intelligence (DNI). You’ve probably also heard what Trump had to say going in about how he trusts our spooks: “Not so much from the people that have been doing this for our country. I mean, look what’s happened over the last ten years. Look what’s happened over the years. It’s been catastrophic. And, in fact, I won’t use some of the people that are sort of your standards . . . because they’ve made such bad decisions.”

On the other side you have former senior CIA officials like Michael Morrell saying the country cannot afford to have Donald Trump for its president, or agency director Michael Hayden insisting that if Trump is in charge and wants to carry out his promise to torture people, he’ll have to bring his own bucket.

This is really quite an odd circumstance. Think about it. Mr. Trump has based his entire campaign on selling fear, the fear of an existential threat from which only he can rescue the nation. Meanwhile our intelligence community has been selling fear also. The continuing terrorist threat and so on, so much so that in this space we have taken to calling the present DNI, General James Clapper, our Fearful Leader (and Michael Hayden–who devoted his tenure at CIA to an attempt to preserve the torture program– a fabulist). That sides with such comparable worldviews eye each other so darkly says something about the reality of the United States today.

First to Trump. Take his ten year standard. Actually you can do better and go back to September 11, 2001. No American has died on U.S. soil from an islamist terrorist attack since then. There have been a host of remote conversions and gun massacres, from Orlando to San Bernardino, to Aurora; but it remains debatable whether those represent disturbed individuals grabbing the cloak of jihadist justification or true terrorists. There have also been an even larger number of cases where weak individuals have been converted in entrapment schemes by our own security services and then condemned as terrorists. If Trump’s point is that the FBI and others made dubious decisions in those cases, he’d be right, but somehow I don’t think so. He would also be right if he meant the intel pukes miscalled the growth of ISIS, or Iran’s alleged rush to the bomb, but that’s not Trump either–he is about threat to the homeland. Anyway, bottom line is that on his decade-long measure of merit, intelligence performance has not been “catastrophic.”

As for the spooks themselves, it is a matter of both relief and concern that they speak up about the Trump candidacy and his specter of fear. The intelligence chieftains’ protests give us relief because they show the spies themselves recognize the danger inherent in the stoking of paranoid fears, and they agree that Trump, as the personification of that irrationality, would be dangerous in the White House. But the spooks themselves seem not to understand that their own fear-mongering created the atmosphere of hysteria in which a Donald Trump could flourish.

Suddenly the spies find themselves in a situation where Mr. Trump could actually become President of the United States. And the Donald has promised to sweep their halls clean of the old spooks if he wins. Fearful Leader and the others ought to have thought long ago about the consequences of their fear-mongering.

Peruvian Days

August 5, 2016–In a virtually unnoticed exchange in February 2010, Michigan Congressman Peter Hoekstra called the CIA to task for its incredibly ham-fisted handling of the April 20, 2001 incident in which American missionaries were killed by the Peruvian air force, in collaboration with a CIA air crew, working as part of a joint program to interdict drug trafficking. In an angry tone the Republican congressman denounced the CIA’s response, released the actual film of the incident, and triggered an official statement from the agency—conveniently left off the CIA website to attract as little attention as possible. This episode is important not only to the continuing effort to bring accountability to CIA operations, but also particularly because in the war on terror, the CIA’s Predator attack program is now resorting to similarly low standards of identification and evidence in selecting its targets. It’s a fair bet that accountability issues will arise in the Predator operation, and the Peruvian incident offers stark illustration of how the agency treats these kinds of things.

In brief background, toward the end of 1994 President William J. Clinton approved a project—buttressed by interagency recommendations and duly diligent Department of Justice memoranda—to halt or hinder airborne shipments of drugs from Peru by means of a common effort between the CIA and Peruvian authorities. Agency flights would identify traffickers and call in the Peruvian air force, which would either force the planes to land or shoot them down. Called the Air Bridge Denial Program, this project continued until April 20, 2001, when a CIA flight summoned the Peruvian air force to tail a plane which actually contained an American Baptist family, the Bowers, who were returning from vacation to their mission in the Andes. The CIA contract operators who had identified the plane as a possible target began to doubt their original suspicions, but their calls to Peruvian authorities went unheeded. After making little effort to communicate with the missionaries—a radio message beamed on a frequency the plane was not monitoring—the Peruvians shot at the plane, killing wife Veronica and infant daughter Charity, and wounding pilot Kevin Donaldson. Missionary husband Jim Bowers and his seven-year old son Cory barely survived the crash landing of the aircraft. George J. Tenet, CIA director at the time, gives this moment the “sad distinction” of being “my worst day as DCI before 9/11.” [At the Center of the Storm, p. 49]

The key facts became known within ten days of the tragedy. In its hustle to defend itself the CIA revealed some, and the U.S. government released other data in protecting the larger initiative. That Peruvians had done the shooting, that the CIA aircrew had not followed their own standard procedures for identifying the aircraft tail number, but that they recanted their initial suspicions and had tried to call off the attack—and that all of this was on tape—were revealed. Within a month it became known that at the outset of the program State Department lawyers had recommended against participating in a program that would involve shooting down civilian aircraft. By July 2001 results of a State Department internal investigation had leaked and showed that joint training between the CIA and Peruvians had been spotty, embassy oversight lacking, that cautionary procedures had gone by the boards while the CIA contract employees knew little Spanish. All this and more was confirmed by an October 2001 report from the Senate Intelligence Committee, which additionally revealed that a similar rush to shoot had already occurred, in 1997, but got no attention because that time real drug traffickers were involved.

What did the CIA do? Bury all of this as deeply as possible. The government paid $8 million to settle 2002 claims filed by the Bowers family and pilot Donaldson. The Justice Department did conduct a criminal inquiry but in 2005 decided against bringing any charges. My book Safe for Democracy contains numerous examples of similar sorts of shenanigans.

Not until August 2008 did CIA inspector general John Helgerson complete his report on the Peruvian aerial incident. That it required seven years to complete this investigation already draws suspicion. According to Representative Hoekstra, the CIA engaged in “repeated failure to follow procedures that resulted in loss of life; false or misleading statements to Congress by CIA officials up to and including former Director George Tenet; and potential obstruction of justice by CIA employees with respect to a Department of Justice criminal investigation.” [Letter, Rep. Hoekstra-Director Michael V. Hayden, October 6, 2008]

Hoekstra drew these conclusions from Helgerson’s report, which additionally found that no one involved in modifying the presidentially-mandated intercept procedures had had any authority to do so, that within hours of the attack CIA officers had begun falsely saying that the shootdown was a one-time error in a well-run program, and that the agency had not met legal obligations to keep the NSC and Congress fully informed, including suppressing adverse results of internal inquiries and ignoring a direct question from national security adviser Condolezza Rice.

It was only after Representative Hoekstra made an issue of the Helgerson report did CIA director Michael V. Hayden review it and decide to convene an accountability board. That board decided upon minor sanctions for sixteen individuals—ABC reporters Matthew Cole and Brian Ross learned that one, for example, received a reprimand letter for his file that would be removed after a year. The individuals involved included the CIA counter-narcotics chief, its chief of station in Lima, and the base chief of the facility dispatching the spotter planes.

Even more disturbing, Director Hayden initiated a CIA internal investigation of the Inspector General. Thus, some minor slaps on the wrist for field officers are combined with a major pushback at an agency watchdog.

Lax accountability for CIA operations is not surprising but remains highly problematic. Today’s CIA Predator attack program, like the Peruvian project, involves remote target identification, instant attack, and high secrecy. The criteria for selecting prospective victims are supposed to be very tightly drawn—but that was supposed to be true in Peru also—and American citizens may be targeted. The CIA as judge, jury, and executioner? Apart from the unintended consequences of this program on American-Pakistani relations, it can only be a matter of time until an accountability moment falls from the CIA’s Predator drones.

The brouhaha over the Senate torture report demonstrates an agency virtually breaking loose from supervision. This situation is not acceptable for a security agency responsible to citizens in a democracy.

The Fabulist as Operator: Michael Hayden’s Openness

March 15, 2016–Former top spook Michael V. Hayden loves operations. Pushing pieces around the board, making the game go his way–those are the things for which he wakes up in the morning. That’s the meaning hidden in the title of his recent memoir Playing to the Edge. In this space a few days ago (“Michael Hayden: Voice of the Fabulist, March 12, 2016) I covered Hayden’s recent appearance at the “Lawfare” forum of Stanford University. One of the questions he fielded there was which organization–Hayden had headed both the National Security Agency (NSA)  and the Central Intelligence Agency (CIA)–he had better liked being the director of. Having already said, in a different context, that NSA probably accounts for 60 percent or more of the President’s Daily Brief–and the CIA for much less than the rest–the general came back and said he preferred leading the CIA. He ticked his head. “Covert operations,” he said.

I’ve heard elsewhere–in more than one place–that Mr. Hayden takes more delight in the intricacies of minute spy activities than whichever other senior officer my commentator was familiar with. CIA lawyer John Rizzo writes, “Mike Hayden loved being a spymaster, by which I mean he reveled in conceiving and running covert operations involving real people and back-alley intrigue.” In fact General Hayden’s Big Idea when he took the helm at CIA was revamping the agency’s organization so as to increase the “operational tempo.” Even CIA’s historians were supposed to get involved. Operational tempo did increase–but how much of that was due to the latest moving of deck chairs and ho much to Langley’s increasing reliance on drone attacks remains an open question.

In his memoir the general recounts asking a civilian advisory board whether the United States will be able to continue espionage into a future where every day the demands increase for transparency and public accountability. He reports the board had its doubts. “Really important answer,” Hayden notes (p. 422).

What do you do to avoid that eventuality? You manipulate the public’s knowledge. Here’s a story, and it’s about spies, and it really happened:

When General Hayden came to Langley the hottest issue on CIA secrecy was the continuing effort to shield the “President’s Daily Brief” (PDB), reports that constantly update the chief executive. The PDBs had been recently controversial in the case of 9/11, where it developed that CIA had warned of an imminent threat. Elsewhere CIA had observed that terrorists might use airplanes as weapons. The Bush White House tried but failed to keep that information from reaching the commission investigating the 9/11 attacks and the public. The CIA asserted these PDBs were decision documents and eligible for special secrecy protection.

Dr. Larry Berman, a University of California history professor, asked for some of these PDBs to be released for his research, documents so old their secrecy was not credible. The CIA turned Berman down. In conjunction with the National Security Archive he sued for the papers’ release. The PDBs were not protected either by precedent or by nature–Berman and Archive could show that numerous PDBs and predecessor reports (the documents had another name in the Kennedy years) had long since been declassified, and that no claim had ever been made that releasing them revealed intelligence sources and methods or that they were exempt by virtue of presidential privilege.

While Berman lost at the U.S. district court level, his appeal was on its way to the U.S. Court of Appeals for the Ninth Circuit when Michael Hayden took over the CIA. As per Hayden’s question to his advisory board, it appeared there were reasons to expect the same societal forces pushing the effort to open the PDBs might sharpen across the board.

The general’s problem was to be open and shut at the same time.

Now, the CIA also had another ongoing secrecy appeal on its plate. That was the matter of the “Family Jewels,” a notorious compilation document ordered up by CIA director James R. Schlesinger in the early 1970s to discover what domestic abuses the agency had previously engaged in. Revelation of some of the ops that figured in that report had led to the “Year of Intelligence” in 1975, when the CIA had had to endure multiple major outside investigations. Even though its contents were picked through by all those inquiries, the CIA had forever kept secret the document itself. Numerous Freedom of Information Act (FOIA) requests for it had all been rejected. When Hayden arrived at Langley the National Security Archive had been pursuing an FOIA on the Family Jewels since 1992. Archive director Thomas Blanton had been in contact with CIA declassification officials encouraging them to release the material. It would be a good place to start, Blanton argued, if the agency wanted to turn the public dialogue away from torture.

Suddenly Blanton began to hear good things. Senior agency officials told him he’d be happy with an upcoming speech–General Hayden was scheduled to address the Society for the Historians of American Foreign Relations (SHAFR), the major professional association of diplomatic historians. Hayden duly appeared on June 21, 2007. He called himself “a lifelong student of history.” He went on to declare that “CIA recognizes the real benefits that flow from greater public understanding of our work and mission,” extolled a “very successful” FOIA program, and went on to assert that “we have completed our declassification review and are preparing to release most of the so-called Family Jewels.”

At the Archive we were overwhelmed, in the short term, with the impact of all this. The general seemed to be turning over a new leaf, perhaps a true age of openness was dawning. Media excitement built through the weekend. The CIA actually released the Family Jewels on the Monday, June 25, when a CIA car pulled up in front of the Gelman Library building of George Washington University, where the Archive offices are located. Television trucks were pulled up all along the street and Langley’s minions no doubt feared the consequences of their pictures appearing in the press. They called upstairs for Mr. Blanton and an assistant to come and retrieve the papers. Much has been done with that declassified document since.

But the Family Jewels were only the MacGuffin in all this. I did not realize it at the time but General Hayden now confirms it in his memoir. “I decided to centralize declassification review at the corporate level,” he writes (p. 121). That meant the agency’s Publications Review Board, a zealous and paranoid collection of the most antediluvian sort, whose antics I have documented in my book The Family Jewels. Releasing the document of that name marked not the beginning of openness but its end–or at least Michael Hayden’s play to the edge.

I was at the SHAFR luncheon where Hayden spoke. I ought to have realized at the time. There were two giveaways–during the questions and answers, several diplomatic historians raised the question of the PDBs. Far from talking openness, he spoke of desire for openness but  General Hayden wanted “space” for decisionmakers and also alluded to the spurious sources and methods argument, which those of us who had ever seen the already-declassified PDBs knew to be so much hot air.

The other giveaway was that CIA took the occasion of the SHAFR luncheon to roll out a new umbrella unit, “Information Management Services,” that combined the Review Board, which has the power of (and indeed is preoccupied with) suppression of anything written by a CIA employee, the Historical Review Program (which had done some declassification work in the past), and the agency’s FOIA and privacy office. An official of this new unit actually drew me aside at the luncheon, reminded me of a particular declassification request I had filed, which apparently he had worked on, and asked why “we” (the public) kept making requests like that. Managing information meant keeping it away from the public.

Hayden told us, “I firmly believe this approach will improve CIA’s standing with key partners inside and outside government, including people like you.” The CIA’s declassification process slowed down considerably in the wake of that episode. General Hayden personally participated in this op.

A few months later the Circuit Court ruled that CIA could, indeed, keep their PDBs secret for the moment, but it threw out the “sources and methods” bugaboo, telling the agency it would have to consider the true secrecy value of the various reports. That is what led to the event last September at the Johnson Library, where the CIA made a show of releasing thousands of PDB documents. Note the additional 8-year delay in opening this material. It’s also worth noting that in both the Family Jewels and PDB cases the agency speaks as if it had itself thought up the idea of releasing these documents, rather than being impelled by the public.

 

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.

Big Brother Almost Won!

September 24, 2015–The story of what happened with the National Security Agency’s massive domestic eavesdropping program just keeps getting blacker, even as it comes into better focus. Today’s entry in the NSA sweepstakes concerns what we learn from a new redaction of a review of the program codenamed Stellar Wind that resulted from an investigation by the inspectors general of five agencies. A more heavily expurgated version of this document had been declassified a while back, but the New York Times sued to get the full report released. Among the details in the latest version are ones that should make your skin crawl. During George W. Bush’s presidency, Big Brother almost succeeded in extending his umbrella across the land–and I don’t mean simply the big ear of the NSA.

Stellar Wind is the real name for the so-called “President’s Surveillance Program,” the innocuous-sounding name someone dreamed up when news of the NSA surveillance program leaked midway through Bush’s years and the administration scrambled to defend and extend it. I wrote about this at some length in my book The Family Jewels. We generally understood that Mr. Bush had approved the eavesdropping a couple of days after the September 11 attacks, that it aimed at terrorists, that he re-approved it every 45 days. There was a remarkable confrontation in March 2004 at George Washington University Hospital, where Attorney General John Ashcroft had gone for treatment of pancreatitus, and White House officials (chief of staff Andrew Card, top lawyer Alberto Gonzales, and vice-presidential counsel David Addington) went there in an attempt to induce Ashcroft to sign the latest renewal. Press accounts previously indicated that the dispute centered on NSA’s desire to widen its collection to cover all Americans. In the new declassification we learn that it was much worse.

The NSA program–like the CIA’s torture project–was based on faulty legal advice (in fact, the same faulty legal advice) from Justice Department lawyer John Yoo, with his imperial vision of presidential power. Once Yoo left the Department of Justice (DOJ) in the spring of 2003, his superiors looked at the legal advice underlying Stellar Wind and found it wanting. The problem was that there was a law that laid down conditions for what the NSA was doing and that Yoo’s analysis had wholly failed to take this into account. Yoo’s successor was not initially permitted to know of Stellar Wind and could not craft a new justification for it. Then Dick Cheney’s lawyer told DOJ it would have to justify the request before he would ask President Bush to bring the DOJ official into the circle of those who knew of Stellar Wind.

I note that because we’re seen Addington’s footprints before, all over both CIA and NSA Bush-era actions, and sure enough he’s got a central role here. Anyway, the problem in May 2004 began when DOJ found the NSA had already exceeded its authorities and was collecting beyond what the legal memoranda provided. Late the previous year DOJ officials had informed Addington and Gonzales at the White House that they had doubts regarding Stellar Wind. The White House lawyers bristled when DOJ officials asked permission to inform Deputy Attorney General James Comey. As it happened, even before Comey was formally brought into the circle he harbored doubts, which he talked over with John Ashcroft only hours before the latter had his medical emergency and went to the hospital. It was at that point, with Stellar Wind up for its latest re-authorization, that Alberto Gonzales phoned DOJ asking for a letter certifying that John Yoo’s (now discredited) legal opinions still applied. Top DOJ officials determined that the Yoo memoranda failed to accurately describe, much less justify, the NSA spying. The Justice Department refused.

At noon that day senior White House, NSA, and CIA officials convened to consider how to proceed. Vice-President Cheney told the group they might have to re-authorize Stellar Wind without the participation of the Justice Department. At that point the FBI director declared such a move would be a problem for him too. This was when the Bush people decided to have the meeting with congressional officials that Mr. Cheney makes so much of in his memoir (claiming Congress approved when he was doing)–when the White had been blocked from proceeding.

This is also the backdrop  for the rush to Ashcroft’s bedside, where Card, Addington and Gonzales pushed their way into the hospital room over the protests of Mrs. Ashcroft; and DOJ officials too rushed in to stiffen their boss’s backbone. The Justice Department officials got there first. Ashcroft told the Bush people that Mr. Comey was the man they had to deal with so long as he remained in the hospital.

At that point Mr. Bush’s subordinates left, and they presented the president with a re-authorization document the next morning that George W. Bush signed. It had no Justice Department certification, and there were three more big differences from previous iterations of Stellar Wind:

(1) the document asserted that Chapter 119 of Title 18 of U.S. Code was “displaced” by a president’s authority as commander-in-chief;

(2) explicit statements replacing language requiring some terrorism-connection for a telephone metadata connection with a stipulation the collection merely had to be in pursuance of the authorization document itself; and

(3) a disingenuous invocation of Attorney General Ashcroft’s support with an assertion that DOJ had approved similar authorizations in the past.

In the paperwork that circulated around this dispute is a memo from David Addington–the man who used to carry a vest-pocket copy of the Constitution in his jacket–saying that with this authorization President Bush had decided to reinterpret the laws of the United States.

It was at that point when the ranking officials of the Department of Justice, plus the FBI director, threatened to resign en mass if this maneuver was permitted to stand. Over the next few days President Bush met with Mr. Comey, a different renewal was crafted with the old terms, differences papered over, and the move begun toward putting Stellar Wind within some kind of legal framework. In many posts on this site I have argued that framework was unconstitutional, but at least it was not a direct usurpation of the legislative power of lawmaking in the United States, as was contained in the NSA renewal document of March 11, 2004. That document was the equivalent of a coup d’état. It would have ended constitutional government in the United States. Big Brother still has to wait.

 

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.

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.

Torture and Eavesdropping–Do the Spooks Get a Pass?

January 5, 2015–There are smiling faces today among our intrepid spies, their acolytes, and the political figures who stand behind them. The CIA looks to have dodged a bullet on the torture investigation accomplished by the Senate intelligence committee, and the NSA dragnet eavesdropping is safe pending the legislation authorizing it coming up for renewal. Meanwhile, because the Republican Party won control of the Senate in November’s election, the intelligence oversight committee leadership will switch parties. Saxby Chambliss, the Georgia Republican likely to take over from Diane Feinstein, is even more a pushover than she has been.

Game over? The smiling spooks would like to think so. They have fed friendly reporters–like Walter Pincus of the Washington Post–a diet of cherry-picked evidence designed to substantiate their claims. Pincus, with his increasing tendency to cull details from a document and recite them without pondering the deeper meanings of evidence, is making their case. A big conquest was Mark Mazzetti of the New York Times, who ten days ago (December 27) published the spooks’ dream article, “After Scrutiny, CIA Mandate Is Untouched,” which sought to explain why the agency this year, unlike the cauldron of 1975, has succeeded in scooting by its overseers.

Don’t believe it! Not for a minute. What we are witnessing is the end of a cycle of oversight of the intelligence community. As I discussed at some length in Safe for Democracy, since its creation the current system has featured a flux in which key overseers of the spy system compete for primacy, which shifts between the White House and Congress. That cycle went out of kilter after 9/11, with the White House leading CIA and NSA into a prohibited zone of illegal activities, and ordering them to bamboozle Congress. The intelligence committees–at that time under Republican control–were happy to go along. The cycle would have stayed in balance had President Obama enforced accountability. Over the past six years, while Democrats led the intelligence committee, the torture investigation essentially represented an effort to override Obama’s veto. That has failed, but the real meaning here is that the system of congressional oversight of intelligence has shown itself to be bankrupt– and moribund. More than that, suppression of a wave of legitimate criticism affects the harmonics of the dispute: next time around the metastable energy will make a new wave of criticism even more powerful. The pieces are already in play to make that happen. Consider:

Item: Relying upon Republican-controlled intelligence committees to get the CIA and NSA off the hook merely increases the damage that partisanship has already done in this vital field of national security. When leadership in the Senate changes again, the controversies left hanging right now will simply roar back to the front. Once the grip of partisanship is complete, the old management techniques become useless. The spooks enjoyed marked advantages under the old system. The next oversight mechanism, not yet conceived, cannot be predicted. The spooks are exchanging known quantities on a platter for the contents of a paper bag.

Item: The spooks and their acolytes have been relying upon invidious comparisons between the Senate intelligence committee’s torture report and the study that committee did of the Iraq prewar intelligence, contrasting the claim that many interviews were done for the Iraq reports with this round, where Senate investigators avoided such interviews. That was because the same CIA officers were under simultaneous criminal investigation and evidence could be tainted by its appearance under congressional questioning, as had previously occurred in the Iran-Contra Affair.

The Iraq WMD versus torture report comparisons are a loaded hand grenade waiting to go off. If I were one of the officers implicated in this affair I would avoid comparisons like this at all cost. The Iraq WMD report was the product of the Republican-led committee, so on one level this argument is like saying Republican reports are good but Democratic ones bad. That will be firewater when Democrats return to the helm at the intelligence committee.

Equally to the point, the Senate committee’s Iraq WMD report was itself gravely flawed. For one thing, the volumes had to be virtually dragged out of the committee over a period of several years. The Republican leadership of the committee also deliberately left out important subjects of inquiry to shield the Bush White House, and they rejected including questions to which the Democratic members sought answers. The Republicans at the Senate committee bent over backwards in the WMD reports to avoid any conclusion that the CIA had been ordered to find Iraq to be possessing WMDs and colluding with Al Qaeda.They further resisted making any conclusion that the White House had then used these flawed CIA reports to justify invading Iraq.

The Iraqi “cakewalk” is soon to enter its twelfth year. The Senate committee’s WMD report is a very deep black mark, not an exemplar of sound investigative practice. –And while we are on the subject of interviews (evidence) it is worth making several points. First, the Bush administration denied numerous documents to the congressional committees performing these inquiries, so the “evidence” objection in its case simply applies to a different form of material. Indeed, the intelligence committee’s investigators did a number of their interviews to compensate for missing documents. In the torture report the investigators were denied documents too, enough so that the White House had to intervene to adjudicate the dispute.

In other words, in both cases there is evidence of CIA and White House cover up, not of responsiveness to Congress. If the reports are to be denied because of limitations of evidence, that really says Congress is not capable of comprehensive reporting on U.S. spies because it can never get the full story. Conclusion? The oversight system has broken down. (We’re back where we started up above.)

Arguments over the interview evidence also fail to take the nature of interviews into account. The Senate investigators did have access to the Department of Justice and FBI records of interviews with the CIA principals in this story. It is therefore disingenuous to say the investigators never “talked” to anybody. The Justice/FBI people were asking the same questions that concerned the Senate investigators, and the CIA officers were giving answers that we can assume are at least related, if not identical to, what they would have said to a Senate investigator asking the same question.

If, on the other hand, the spooks’ line is that they would have said something different to the Senate committee, that raises questions of veracity in interviews (not to say perjury in their original comments to the FBI) which calls into question the value of the interview evidence as a resource for the Senate investigators.

This is a very slippery slope. Were I among the CIA officers threatened by this controversy, I would be asking whether the basis for their complaints regarding the Senate report has really been considered thoroughly.

Item: While complaints about the Senate report sort of evaporate when they are examined, those about the CIA’s own actions do not. The torture was real. In the law it does not matter–except to make the crime more grave– how many times, when it started or stopped, how many were the victims. Who authorized the torture–whether it was the White House or some rogue CIA element–only matters for how wide is the circle of guilt. This is why Walter Pincus’s defense of the CIA is so weak. That the CIA sought to preserve a standby capability for torture even after it had stopped only increases its culpability. (That last point directly implicates Michael Hayden on his watch.)

The CIA officers have put up documents that reveal where, when, and how the Bush White House gave the agency assurances it was committed to the torture and fully backed the CIA. Here is an issue that directly threatens presidents. Here, in effect, the CIA is saying to their top boss, “Mr. President, we’re going to save our asses, and if that means blowing your cover, so be it.” It was a threat Richard Helms had made to President Gerald Ford. Now John Brennan’s CIA has actually done this. Were I Barack Obama–or his successor–I’d be plenty worried about this. Here is another reason why failure to exact accountability right now is such a grave error.

Other real things in this sordid story include the CIA misinforming its overseers while these events were taking place, limiting information to the Senate intelligence committee, trying to get inside the Senate committee’s decision cycle (that was the real meaning of the “Panetta Report,” a survey of what the documents could be expected to tell the investigators); its countersurveillance of the Senate investigators by hacking their computer network; its filing a false criminal complaint against the Senate inquisitors; its dragging its feet in making documents available; its effort to force changes to the Senate report in the interest of “historical accuracy;” and more.

Item: In contrast to a two-year delay in actually declassifying the Senate investigative report, the CIA moved extremely rapidly on releasing the documents its former officers used to defend themselves from the torture charges. (These are the papers referred to above.) The declassification markings on these documents suggest that agency officials moved to release them even while they continued to hold up on opening the Senate report itself. Unlike the senators, who had to wait two years, or many among the public, whose CIA declassification (FOIA) requests languish–and are still languishing–five, eight, fifteen years or more, CIA officers can obtain the immediate declassification of top secret information to be used for political purposes. The move to declassify this information took precedence over a pre-existing caseload of FOIA requests, gave unauthorized special status to former CIA employees, and privileged them even over their congressional overseers. This is a clear breach of the CIA’s own regulations and a presumptive violation of law (5 U.S.C. 552 et. seq.). We can debate whether it is also a criminal offense (a violation of the Espionage Act in precisely the same way as the revelations of Edward Snowden, for example, someone that Fearful Leader Clapper has been ranting about).

Bottom Line. In a desperate drive to avoid accountability and criminal liability, the intelligence agencies–and so far only the actions of the CIA are hinted at–have engaged in a pattern of deception and threat. A threat to Senate overseers was made explicit with referral to the Justice Department, one to the president is implied in the latest batch of document releases. The outstanding issues will only be cloaked by the new Senate intelligence committee. These issues will return when committee leadership changes–and the whole complex shows that the existing system of intelligence oversight in the United States no longer functions properly.

The sentiment expressed in the Times–that the CIA has gotten a pass because the report is out but no changes have yet occurred in terms of public management of and accountability for intelligence activities–is simply a whistle in the wind. In the first place the machinery of government grinds slowly. In the much heralded “Year of Intelligence” of 1975, which Mark Mazzetti spends a good deal of ink on in his article, one of the recommendations of the Church Committee was that there be a written charter for the spy agencies voted into law. It was actually 1977 before serious discussions of a “CIA charter” took place on Capitol Hill, and 1980 until Congress considered the most serious charter proposal. The Reagan executive order No. 12333, often cited as the spies’ charter, was a project undertaken specifically to head off  congressionally-enacted restrictions. It did not emerge until 1983. You’d be foolish to think that the absence of action three weeks after appearance of the Senate torture report meant anything, much less that the culprits had escaped.

More than that, there is no statute of limitations on torture. That is the meaning of the French-Algerian, Chilean, Peruvian, Salvadoran, Guatemalan, and, lately, the Brazilian cases, some of which have been mentioned in this space. The torture will follow the CIA through time, coloring people’s view of it. There can also be no confidence that international or other national courts won’t take up the task from which U.S. authorities recoil. A process conducted within the United States would at least be under the control of American authorities. You can see how misguided has been President Obama’s effort to avoid accountability in the CIA torture and obstruction of evidence.

 

 

 

The NSA Watch

January 3, 2015–In the first of a series of long-form collections, Prados here reprises his commentaries on the National Security Agency domestic spying and eavesdropping scandal. This selection includes commentaries posted from the end of 2013 through the winter of 2014, a period of time during which the NSA spying was found wanting by courts, presidential reviews, and a public privacy board. President Barack Obama promised reforms. These essays analyze the evolving scandal, providing background on individuals and issues involved in the controversy.

The collection is available as a product for a nominal fee from the “Downloadable” section of this website. It appears under several national security and intelligence categories.