Principals and Principles: Trump’s National Security

January 31, 2017–Second fiddle to the immense current controversy over President Donald J. Trump’s immigration action has been his initiative on national security. Here the firestorm concerned a Trump directive that added political operative Stephen K. Bannon to the Principals Committee of the National Security Council (NSC). At the same time the president demoted the incoming Director of National Intelligence and the general who is Chairman of the Joint Chiefs of Staff to merely occasional attendance on that same committee. Susan Rice, the national security adviser who served former president Barack Obama, labeled this action “stone cold crazy.”

Attracting the most attention is Stephen Bannon’s apparent promotion. As “chief strategist” he was supposed to be providing Mr. Trump with suitable advice. Now the Trump directive, called a “National Security Presidential Memorandum” (NSPM) not only “invites” Bannon to attend all NSC meetings, it makes him a member of the NSC Principals Committee, and Bannon’s deputy an invitee to sessions of the NSC Deputies Committee. In all this gnashing of teeth no one seems to have noticed that President Trump has also elevated his chief of staff, Reince Priebus, in the same way.

Common wisdom is that Mr. Bannon is becoming the unelected president, exercising all the power, without the title or, indeed, the people’s opportunity to vote on him. I actually think it is too soon to draw that conclusion. What can fairly be said is that President Trump seems to be about increasing the political content of NSC discussions. This is not new–and the media discussions so far have been extremely shallow. Yes, David Axelrod sat in on some NSC discussions, yes Karl Rove was kept out of some similar deliberations during George W. Bush’s time. But it is absurd to think that presidents have historically kept politics out of national security. Under Jimmy Carter, Zbigniew Brzezinski made a point of including political considerations in NSC staff work. Henry Kissinger, his predecessor, can be heard on the Nixon White House tapes talking politics quite often. President Carter also listened to chief of staff Hamilton Jordan on national security matters, making him a major player in Washington’s decisions on whether to admit the Shah to the United States for medical treatment, which became a catalyst for the Iran Hostage Crisis. Ronald Reagan used his top politicos on security missions repeatedly. One of them, James Baker III, actually became secretary of state when Reagan’s vice-president, George H. W. Bush, ascended to the presidency. And Bush’s son, “W,” used political aides as well. Andy Card delivered White House messages to the CIA, played a role in the “Niger uranium” affair that convinced CIA boss George Tenet to retire, and he served as utility infielder for the president. It’s the job.

On the other hand the pundits have captured the deeper importance of NSPM-2, the formal identity of Trump’s reorganization directive. It does bring politics more to the fore at the NSC. The presence of both Bannon and Priebus on the Principals committee is a first-order indicator that Trump’s Council will become one battleground where the White House pecking order will be fought over. But the elephant in the closet is Jared Kushner, the president’s son-in-law, who is really the topmost adviser of all. An alternative explanation for the NSC imbroglio is it puts the big shot advisers in a ring to duke it out while Kushner consolidates his own power.

Stone cold crazy? Yes, at the level of mere national security. This will cost the nation in the quality of our foreign policy and the coherence of Pentagon efforts. But the judgment also depends on the president’s real aims. If they are political, this harebrained scheme may not be stupid at all. It puts big aspirants to power in a place where they can be tied to the ridiculous judgments that flow from this NSC–and then they can be pushed out of the Trump administration. That brings us to the question of principle: there is none here. It is an outrage to the American people to use national security and foreign policy as mousetraps to catch power players.

 

 

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.

Freeing the President’s Daily Brief

September 16, 2015–Today the big pooh-bahs of the security services–Fearful Leader Clapper, the Machiavellian Brennan, former SEAL chieftain Admiral McRaven, and a number of their predecessors, have gathered in Austin, Texas, at the Lyndon B. Johnson Presidential Library. Their purpose is to preside over an event at which the government agencies and the National Archives formally open for research the key intelligence reports for the ages. Today these are called the President’s Daily Briefs (PDBs). Jack Kennedy knew them as the PICKL (predictably, “pickle”), or President’s Intelligence Checklist; Dwight D. Eisenhower’s staff had even more awkward names like “Synopsis of Intelligence Items Reported to the President.” (They never could find an acronym for that one.)

If you’re familiar with the PDB at all it is probably due to the now-notorious issue of August 6, 2001, in which CIA analysts reported their sense that Al Qaeda terrorists were likely to employ large aircraft as weapons. The Bush White House, which paid no attention, moved heaven and earth to keep that PDB out of the hands of 9/11 investigators. Michael Morrell, Mr. Bush’s CIA briefer, went on to great things at the agency after his time with the PDB, so you can see it’s serious business.

The PDB is literally the president’s daily secret newspaper. The Johnson Library alone has 38 boxes (an archival box typically contains roughly 2,500 pages). Kennedy another 17, and Eisenhower records together possibly contain that many more. Who knows how many boxes of PDBs accumulated during the Nixon, Carter, Reagan, Bush (I and II), Clinton, and Obama administrations.

These documents have a long and storied past. The very first PDB was crafted on February 15, 1946. In Ike’s day they were written right inside the White House by the president’s trusted staff secretary, Colonel Andrew Goodpaster, and started simply as his notes. He, and John S. D. Eisenhower, the president’s son–and Goodpaster’s assistant–had the advantage of knowing precisely what the president worried himself about.

But like most things that go to presidents, the PDBs became the focus of fierce jockeying. (Still today: In an attempt to assert that it was always the oracle of the PDB, the CIA maintains that its publications Current Intelligence Bulletin and Central Intelligence Bulletin, precursors to the National Intelligence Daily, all lower-level organs, were “PDBs.”) Responsible for the actual information utilized in the PDB the CIA sought to gain control over the drafting. They succeeded when John F. Kennedy occupied the White House. The PICKLs, as they were then known, were delivered by the president’s military aide, General Chester V. Clifton. Then a focus of infighting became who would be present when the president received his daily dollop of intel. McGeorge Bundy often attended, Walt Rostow wanted to be a recipient of the document himself, Henry Kissinger did not want the PDB delivered if he wasn’t there to hear it; Zbigniew Brzezinski, I am told, sought to prevent CIA director Stansfield Turner from delivering the document, to take over the delivery duty himself, or at least be there for the event. In Ronald Reagan’s time security advisers did not trust the president to understand the issues and were almost always in attendance.

Bill Clinton started off by reading PDBs as part of his morning national security briefing. Then he read them only when he was in Washington, often cancelling the remainder of the briefings. People at the agency got the sense the president was not interested. When that got reported in the media, Clinton made a show of the PDBs, receiving them together with Vice-President Al Gore, both their national security advisers, and deputies, and White House chief of staff Leon Panetta. George W. Bush read the documents and plied his CIA briefer with questions. Bush’s father, having once headed the CIA, paid careful attention to the PDBs. Barack Obama has the big multi-official palavers on Friday mornings and small briefings every day. (See more on the PDBs and see some samples on the National Security Archive website, http://www.NSArchive.org.)

The CIA might have gotten control of the process, but it had no handle on the president’s interests. The customer has always been the problem for the intel pookies. President Kennedy would question Mac Bundy or General Clifton and they would pass the queries along to the agency. LBJ went through Rostow and Nixon through Kissinger. Carter often relied upon Vice-President Walter Mondale, who had been a member of the Church Committee, as his conduit to the intelligence agencies. CIA director Bill Casey heard President Reagan express a desire for more information on Poland and had the PDB redesigned to include a special Polish section. Casey arranged for Richard Lehman, head of his PDB unit and the designated briefer, to discuss the president’s mood and concerns after his return each day. These “backbriefs” have remained the standard procedure ever since. (After Bill Clinton appeared to shun PDB reports the CIA tried spicing them up with foreign inside gossip and direct reporting from clandestine sources.) The final printed edition of the PDB went to the White House on February 15, 2014. Mr. Obama now receives his daily intel on a secure tablet.

With whatever exceptions exist, all this vein of rich historical material will remain classified even after today. I say “opened for research” because those who control declassification at the agency have demonstrated a proclivity for gutting the record in the name of information security.  The big brass aren’t coming to Austin to give out the PDBs, only to acknowledge they have become fair game in the secrecy jousts.

Return, with me, to the days of Clinton, when the Cold War had ended and the winds were so fair that a serious political philosopher could ventilate about the “end of history.” Secrecy was already a problem then, and Clinton recognized it with a project to institute “automatic declassification” of records older than 25 years, with “exceptions” to be carved out by agencies requesting “exemptions.” The overall project failed (the Air Force and CIA claimed exemptions for 100% of their work), but the specific angle for the Presidential Daily Briefs was CIA boss George Tenet’s assertion that the PDBs needed secrecy to protect  intelligence sources and methods. That marked the beginning of an Alice in Wonderland story that ended only today.

“Sources and methods” are spookspeak for intelligence tradecraft or for specific agent identifications or information compartments (such as overhead imagery, communications intelligence, or the like). But the PDBs are information reports, not efforts to create new intel channels or technologies. Names of agents and whatnot can easily be removed from ancient documents or are, in a number of instances, already known from the CIA’s declassification of specific cases. (For example, Tenet asserted sources and methods protection for PICKLs of the Cuban Missile Crisis in spite of the fact the agency had already released portions of those very documents, plus the actual transcripts of interviews with its Soviet spy Oleg Penkovskiy, whose information lay at the heart of that reporting.) A number of PDBs, bearing on Vietnam, Chinese nuclear weapons, the Six-Day war in the Middle East, and other subjects had already been declassified, with the secrecy apparatus considering them as simple information reports. Currying favor with the press and enhancing his stature as maven of top-level information, Henry Kissinger permitted the PDB to be photographed, a picture published in Newsweek on November 22, 1971. There’s no way a true “sources and methods” issue would have been treated in such a cavalier fashion. But suddenly the sources and methods bugaboo descended to chill the entire declassification process.

In 2004 the National Security Archive joined scholar Larry Berman to challenge this idiocy. Berman had requested and had been denied release of a pair of innocuous PDBs. The Archive joined him in a lawsuit for release of the material as is provided under the Freedom of Information Act. Though we lost the suit for the two specific PDBs in the 9th Circuit Court of Appeals in 2007, the justices ruled that CIA could no longer claim a blanket exemption for the class of documents, and that PDBs from the Kennedy and Johnson eras had to be considered for release.

What is happening at the LBJ Library today is a direct result of that court battle. Notice that the agency took its sweet time–8 years– to cough up any of this material. Without seeing the rest of the documents I nevertheless expect the collection will be laced with redacted passages, pages, and whole documents. The organizers of this event promise that PDBs will be posted on the CIA website, presumably today after the event. I have argued elsewhere that the agency’s declassification process has been corrupted. It functions to protect proper secrets only at the margin and is far more concerned with preventing embarrassment–a stance explicitly prohibited in the regulations supposed to govern secrecy and declassification. I’ll have more to report on the PDBs once I get the chance to see what the agency has done.

Back on the NSA Watch

March 30, 2015–The wire news service Associated Press is reporting this morning that our spooks of the National Security Agency (NSA) have been, in effect, dishonest as well as disingenuous. Readers of this space–and those who have followed the NSA dragnet eavesdropping controversy–will know that the spy agency defended itself against the Snowden revelations by making a big deal about how important was the dragnet. The spooks indulged in a series of misleading claims about how many terrorism cases had been based on the mass recording of people’s phone connections, how many plots had been broken up due to this information.

The NSA claimed not just that national security had been damaged as a result of the public discovering that the government is watching people 24/7, but also that the United States could not afford to do without this intelligence. This assertion formed the basis not only for the agency’s defense of its illegal and unconstitutional surveillance, against Congress and national-level policy reviews, but of NSA’s appeals to President Obama to permit it to continue the eavesdropping.

Now the Associated Press tells us that months before the Snowden leaks, officials within the NSA themselves proposed to terminate the dragnet surveillance. The recommendation was based on the proposition that the eavesdropping yielded little intelligence of value while requiring substantial dollar outlays to store the data obtained! Attentive readers will notice that NSA officials here were making the identical argument to what many said following the Snowden bombshells, when the National Security Agency openly asserted the opposite–that the surveillance data was invaluable.

There can be no plainer illustration of the arrogance and complete lack of integrity of our intelligence services. The latest report again indicates that our spooks seek to preserve any program they are capable of implementing, not those spy programs that are producing valuable intelligence. This is not “national security,” it is pure posturing–on a level with the CIA’s attempt to keep open the option to resume torture even after the black prisons project had been revealed and President George W. Bush had closed the prisons and sent the detainees along to Guantanamo Bay. The worthlessness of a “strategy” built on a basis like this is palpable.

Legal authority for the dragnet surveillance expires this year along with the sunset of the legislation that created it, let me remind–on the basis of NSA misleading Congress then too. It is time to get rid of this albatross which continues to discredit America’s intelligence community.

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.

 

 

 

President Bush’s Secret Police

December 22, 2014–You probably don’t remember this, but when CIA lawyer John Rizzo published his memoir Company Man, there was a bit of a dust up because Rizzo asserted that President George W. Bush was never briefed on the CIA torture techniques, whereas in his own memoirs Mr. Bush claimed he had personally approved them. Now we have real evidence in the matter–grace to the CIA (about which, more in one moment). It seems clear that senior administration officials steered clear of Mr. Bush. Their rationale was undoubtedly to afford the president as much leeway for plausible deniability. But the result was a highly controversial program, run by subordinates, with no one’s cognizance but their own. In effect Mr. Bush approved the CIA becoming his secret police and then left them to their own devices. That sinister eminence Vice-President Dick Cheney became the master of the dark side.

As to the evidence, we owe that to the CIA’s desperate effort to discredit the investigation of the Senate intelligence committee into its torture programs. The former CIA officers who allied themselves to crush the investigators asked Langley to give them secret documents to backstop their denials of investigators’ charges. The CIA, breaking U.S. government rules for handling declassification of secret documents, as well as its own regulations for this purpose, afforded the former CIA officers preferential treatment and gave them information denied to other requestors. The CIA permitted a long-promised declassification review of the actual Senate report to languish while it rushed out these secret documents to fuel the deniers. Moreover, it released the very class of information to them that it routinely denies to all requestors. I wrote at length in The Family Jewels   about how the denizens of Langley have bankrupted their declassification process. Now, these actions surrounding the Senate report show chapter and verse.

You can see the documents for yourself. (I am posting some of them as “Bush Torture Documents,” a product in the “Downloadable” section of this website.) The information in many of these documents is what the CIA calls “predecisional” and denies. In fact some of these documents were subjects of a lawsuit brought against the CIA by the American Civil Liberties Union, a suit the agency lost. Required to release, it did so, but reluctantly and only a few words per paragraph. For its former spooks, though, the CIA released virtually entire documents– to persons with the avowed purpose of discrediting congressional oversight of the agency.

Now back to the substance. The notorious Justice Department memos from John Yoo furnished the supposed legal basis for the CIA interrogation program in August 2002. By that time detainee Abu Zubaydah for four months. After that time it was not until January 2003 that CIA director George J. Tenet brought the interrogators under a formal directive. A record from top CIA lawyer Scott W. Muller makes clear that those consulted for approval of the CIA program in the summer of 2002 did not include the president. Dick Cheney, however, held center stage.

What was on the books was Mr. Bush’s formal order of February 7, 2002 that detainees were to be treated in a humane fashion. That came to be called the “February Memo.” The CIA documents detail literally dozens of instances where agency lawyers and others sought acknowledgements from Justice Department, White House, and Pentagon officials, that that order did not apply to the CIA or what it was doing. In one typical instance, at the White House on January 6, 2003, in presidential counsel Alberto Gonzales’s office, Mr. Gonzales and vice-presidential lawyer David Addington “confirmed that the February Memo was applicable only to the Armed Forces.”

When the United Nations held an International Day in Support of Victims of Torture, a White House press spokesman put out a favorable statement which cited the February Memo. The CIA went ballistic. Director Tenet demanded renewed affirmation of government and Justice Department support for its torture program. National Security Council lawyer John Bellinger volunteered to pass to the White House press office that it should tone down its message since the memo did not apply to CIA.

Later Patrick Philbun, a senior official at the Justice Department, commented that Justice had never taken a written position on certain features of the CIA operation. In June 2004 Tenet again demanded reaffirmation of his agency’s operations. In the interim he halted CIA interrogations in their tracks. Weeks later the Justice Department threw out the 2002 legal papers underlying the torture. The CIA and Justice hammered out a New Deal, capped by a meeting in the White House Situation Room on July 2, 2004. Again President Bush would be absent.

Dick Cheney was very much present, however. From the available documents it appears that Mr. Cheney was there for every key episode. He was consulted in advance in August 2002. One meeting Cheney attended by video link. His lawyer David Addington was a presence too. At one point in July 2003 Cheney, Condi Rice, and Alberto Gonzales agreed that in “some combination” they would tell President Bush the CIA was pursuing interrogations “using techniques that could be controversial.”

As noted, these initiatives came in response to CIA demands for “reaffirmation” of the Bush administration’s commitment to torture. The CIA’s actions were not those of officials confident of the legality of their actions. Quite the opposite. These were fidgety men and women, constantly seeking reassurances. They knew they had entered a moral swamp. They were ready to burn videotapes, destroying evidence, at the drop of a hat. Egged on by the dark lord, Dick Cheney, they ended up becoming a secret police.

It is a piece of CIA lore that in Congress in 1947, when legislators were debating whether to create a peacetime intelligence agency, they insisted it would not be permitted to become a Gestapo–the World War II experience was fresh then–and the agency would have no police powers. At Dick Cheney’s prodding that history was turned on its head.

The use of these documents today, for former intelligence officers to fashion a counternarrative that the CIA torture program was legal, authorized at the highest level, and well managed, is an attempt to hide an outrage under a veneer of efficiency. Think of East Germany during the Cold War.

Apart from everything else, the document dump represents a direct challenge to the President of the United States. Here, CIA officers are signaling that they have evidence on presidents, in this case George W. Bush, which can be deployed to the political peril of the White House. Back in 1975, the “Year of Intelligence,” confronted with evidence of CIA domestic spying, the redoubtable agency spymaster Richard M. Helms told President Gerald R. Ford, that he was not prepared to take the fall for Langley’s misdeeds, and that, if someone wanted to make him, a “lot of cats” were going to come out. The threat that Mr. Helms implied is now real–in the actions of these CIA successors. The secret police are defying their superiors.

Don’t forget, too, that all this discussion has turned on CIA activities with only a relative handful of detainees. The interrogations were matched by–and helped to fuel–a targeted assassination program using remotely-fired missiles and, at one point, a unit of human assassins. There were snatch teams grabbing people off the street in Italy, transport teams taking hand-offs of prisoners in Afghanistan, Indonesia, Montenegro, Sweden, Great Britain, and elsewhere; ghost planes to carry detainees from one secret prison to another. In a speech at Georgetown University in February 2004, Director Tenet took credit for the CIA after 9/11 taking 2,500 prisoners. For months the officers of the Counterterrorism Center must have been circling the globe like compradors, dealing flesh, wheedling favors from allied security services, because the vast majority of those detainees were handed over (rendered) to foreign spooks with even less compunction about what they were doing than the CIA. Jose Rodriguez has a lot to answer for.

Family Jewels Crisis (2)

December 8, 2014–To judge from the hysteria among intelligence officers who are supposed to pride themselves on calmness in the storm, we are standing at the edge of a precipice–never mind that it is of their own making. Having commented just yesterday on the haste with which former CIA operative Jose Rodriguez put up a pre-emptive defense of agency torturers in the face of the investigative report of the Senate intelligence committee on these CIA programs, we see this morning that Rodriguez, the CIA Counterterrorism Center official who ran the torture program has been joined by others, monopolizing the airwaves of the Sunday talk shows.

Many months ago I named a number of these people and called them “soothsayers.” Here’s Michael V. Hayden back again and you can see why. Yesterday on Face the Nation, Mr. Hayden, a former Air Force general who led the NSA, then the CIA, and finally became a senior assistant to the Director of National Intelligence, thundered that it “beggars the imagination” that CIA lied about a program that wasn’t doing any good. “We’re not here to defend torture,” Hayden added via email. “We’re here to defend history.”

Sounds good doesn’t it? Here’s the thing: In the spring of 2004 the CIA Inspector General (IG) issued an investigative report of his own, one that covered the first two years of the torture program and which included internal CIA review documents that questioned the value of whatever had been obtained using these methods. Hayden took over the CIA in 2006. When the IG continued to nose around uncomfortable agency business Hayden began a counterintelligence investigation–of the Inspector General. In 2008 the Senate Armed Services Committee, after long investigation, also did a report on U.S. government torture. That report questioned the effectiveness of the torture and showed that CIA had been an important mover in importing these methods to the Pentagon. Later an internal, expert review by the Defense Science Board rejected the efficacy of torture methods. And the FBI expert interrogators working alongside the CIA in the black prisons, and also with the military at Guantanamo, withdrew from those tainted programs.

And speaking of defending history, Jose Rodriguez is the official most responsible for the destruction of the CIA videotapes documenting the torture, a presumptive obstruction of justice but certainly a blow against history.

That is the history. Worse, when the Congress passed legislation outlawing torture again (it was already criminal under several statutes), General Hayden pushed to exempt the CIA from the law. As torture was ruled out of bounds by the Bush (2) administration, CIA bid to keep open a contingency authority to use these methods, whose effectiveness seems to have been evident only at Langley.

The facts are that (1) Michael Hayden was a johnny-come-lately, not around to see the effectiveness of the early torture; (2) official reviews found the effectiveness of the technique questionable and its legal basis defective; (3) Mr. Hayden attempted to obstruct further inquiries by the IG on his watch; and (4) he sought to preserve a CIA capability for torture in the face of renewed action to render it illegal.

George J. Tenet and his deputy and one-time acting director, John McLaughlin, have also been mentioned as participants in this pre-emptive effort to cut down the Senate investigation. No doubt they come at this from the perspective of protecting loyal employees but both of them should know better. The torture was controversial at CIA even while it was going on, had the dangerous and so-much-discussed criminal liabilities, and had impacts that at best are debatable. For them to take sides means cutting themselves off from another slice of CIA veterans in what may end up as a mud-slinging contest. Better to stay out of this.

The same goes for former president George W. Bush, who is being dragged into this debate. Bush associates are being quoted as convinced of the loyalty of CIA officers and the president himself as having felt lucky to have them on his side. This is a place where the full Senate report, not merely the executive summary we expect to be released, represents a time bomb. If the investigative report contains chapter and verse on CIA deception of its own superiors that will be explosive. As I noted in my book The Family Jewels presidents tend to shield intelligence agencies until controversy brushes them too closely. If Mr. Bush stood inert in the face of CIA deception he knew about because he believed in “enhanced interrogation,” that would be a black mark and could be a matter of international criminal misconduct. These are murky waters, uncharted at best, with shoals visible on the horizon.

Poles of a Magnet: Jim Schlesinger and Lawrence Walsh

March 27, 2014–Sometimes events pile atop one another, almost too quickly to respond. That’s the case this week, where almost simultaneously we see news of two important passages, the deaths of Lawrence E. Walsh and James R. Schlesinger. Once I got a moment I’d intended to write something about Lawrence Walsh because of his role in the Iran-Contra Affair, but before I could put finger to keyboard, this afternoon’s news brings word that Mr. Schlesinger, too, has passed away. The two men, both staunch Republicans, are linked in an unusual way, not due to their political affiliations but each figured in one of the central upheavals of America’s late 20th Century.

Lawrence E. Walsh was a lawyer, active from the mid-30s on. He served as an assistant district attorney and in other legal posts in New York City, as a counselor to New York governor Thomas E. Dewey, at the time the latter ran for president against Harry Truman in 1948 (losing in a breathtaking upset), as a federal district judge, and as deputy attorney general during the last part of the Eisenhower administration. For a long time Walsh worked as a lawyer in private practice, emerging briefly during the Nixon administration as deputy chief negotiator in the Vietnam peace talks in Paris. But his most important service by far was as special prosecutor in the investigation of the Iran-Contra Affair from 1986 to 1992.

Walsh had great respect for the law as well as for the political dimensions of legal matters. Whether he learned that as a DA, with Thomas Dewey, or in the Eisenhower Justice Department, which was obliged to enforce civil rights rules after the Supreme Court’s Brown v. Board of Education decision, I don’t know. But when it came to Iran-Contra, where his political inclination was to help protect President Ronald Reagan, Lawrence Walsh worked steadfastly to get to the bottom of the morass of one of the most extensive cover-ups of the age. The special prosecutor would be stymied at every turn–his evidence tainted by Congress’s insistence on immunizing witnesses at its Iran-Contra hearings, by lack of cooperation from Edwin Meese’s Justice Department, by the mass amnesia of National Security Council staff aides and CIA officers who professed not to remember activities with which they had been intimately associated over a period of years.

Despite every obstacle Walsh and his investigators succeeded in building cases against fourteen U.S. government officials and obtained convictions in eleven of those cases, including those of national security adviser John M. Poindexter and conspirator Oliver L. North. Most of the convictions were set aside by higher courts on the strength of the congressional immunities previously extended to the defendants. The remaining culprits were pardoned by the first President Bush when he was headed out the door at the end of his presidency and Walsh was on the point of prosecuting the former secretary of defense, Caspar W. Weinberger.

Walsh’s investigation concluded that both Ronald Reagan and George H. W. Bush–at that time the vice-president–bore significant responsibility, that CIA director William J. Casey had been a major player, abetted by Secretary Weinberger and others, and that the highest levels of the government had conspired to evade U.S. law in selling weapons to Iran, with subordinates smuggling some of the resulting money to Nicaraguan contra rebels run by the CIA. Walsh found Reagan and Bush not in criminal jeopardy, but certainly guilty of poor management and potentially vulnerable if their foreknowledge of the affair was other than had been represented.

I have written before in this space of certain secrecy rules enacted by the second President Bush–George H. W.’s son–when he came to office, which gave former presidents a say in the declassification of records pertaining to them. In my view these rules were almost certainly instituted to protect the first Bush from the consequences of his role in Iran-Contra. These rules have made a mockery of declassification regulations as they pertain to the Reagan-Bush era.

Like the pole of a magnet Lawrence Walsh attracted the opprobrium and criticism of many from his own political party.

I never met Lawrence Walsh, but I did meet James R. Schlesinger, first in his early guise as a nuclear weapons expert and analyst at the RAND Corporation. Schlesinger was a Harvard-trained economist who came to defense analysis, which I studied at the time, as a proponent of what was called “operations research.” Richard Nixon brought Schlesinger into his administration to lead the Office of Management and Budget. In that capacity, in 1971 Schlesinger conducted an efficiency study of the U.S. intelligence community on Nixon’s behalf, at a time when the president sought an excuse to pare the CIA’s budget. Mr. Nixon later appointed Schlesinger the CIA director. It was Mr. Schlesinger who commissioned the notorious CIA report called The Family Jewels. It was that document that lay directly behind the CIA and NSA abuse scandals of 1975, the “Year of Intelligence,” about which much has appeared on this website of late. Needless to say, CIA and NSA officers were outraged that U.S. government authorities presumed to investigate their activities. Schlesinger soon left to head the Pentagon, where his fights with Henry Kissinger became the talk of Washington.

I saw Mr. Schlesinger on a number of occasions in later years, often at CIA-hosted events, where he was always honored. His role as Mr. Nixon’s gunslinger had apparently been forgotten. I’d not be surprised to see Kissinger show up as a speaker at Schlesinger’s memorial service. Perhaps Mr. Schlesinger’s was an opposite magnetic pole–opposites attract while like poles repel. How else to account for the very different treatment accorded these two Republicans? We’ll see.