Trump and the Hack: Whose Witch Hunt?

January 6, 2017–Yesterday Director of National Intelligence James Clapper sat before the Senate Armed Services Committee and, referring to president-elect Donald Trump’s jibes at U.S. intelligence, said “I think there is a difference between skepticism and disparagement.” As Clapper said that you could see Robert S. Litt, the DNI’s general counsel, sitting behind him. Litt has been referred to here as a consigliere, and also sat at Clapper’s side when the Fearful Leader perjured himself, swearing to a different Senate committee a few years ago that U.S. intelligence had no collection programs aimed at masses of American citizens. This time around you could see Litt let his head fall, hold it in his hand, and shake it “no.” His gestures suggested the consigliere had a bad feeling about what was happening around him.

Today that is confirmed. General Clapper and the mavens of the intelligence community made their pilgrimage to Trump Tower in New York and presented their detailed findings on the Russian hack to the incoming president. I had thought Trump would give them the courtesy of at least pretending to think over their brief for a day or so but, no, hardly were they out the door when Mr. Trump disparaged the spooks’ findings on Russian hacking as a witch hunt.

Trump looks set to win the public relations contest. Not only have his spin doctors–and the president-elect himself–hammered constantly to repackage a question of a covert influence operation from an historical adversary as a mere case of political sour grapes, but U.S. spooks have left themselves vulnerable to that tactic. The DNI has now had three runs at this affair: a joint statement he issued with the Director of Homeland Security on October 7, 2016; a joint report with DHS last week, and yesterday’s Senate hearing. In all three instances Clapper chose to go with anodyne pronouncements that gave hardly any detail regarding the Russian hack that affected an American presidential election, buried those details released among a mass of generic B-S regarding protective measures against hacking, or submerged it among descriptions of hacking by other states and entities. On top of that DNI Clapper failed to restrain FBI director James Comey from the related action of calling in the computers of the ex of a senior Hillary Clinton aide which, apart from anything else, served to muddy the waters about charges of a Russian hack. All of these actions exhibited exaggerated fears for secrecy–and show why here we call the DNI a Fearful Leader. The effect of Fearful Leader’s actions and omissions has been to leave daylight for Mr. Trump to manipulate this matter as an artifact of politics rather than national security.

Donald Trump’s stance of stiffing those he regards as witch hunters now requires him to point out the real enemies. Top of the list has to be U.S. intelligence. You can see the purge coming.


Part 2

January 7, 2017–In his Op-Ed piece in today’s New York Times, former CIA deputy director Michael Morrell write, “Mr. Trump’s attacks on the agency surprised me, but they shouldn’t have.” Precisely. This space has been commenting on the attacks for many weeks now. The president-elect chose to make intelligence a political football as an alternative to accepting a serious objection to his simplistic attitude toward Vladimir Putin and Russia. The head-in-the-sand obtuseness of U.S. intelligence under Fearful Leader Clapper helped make Trump’s maneuver feasible.

Yesterday we commented on the shortcomings of previous releases and reports from Director Clapper that were so bland and uninformative they permitted Mr. Trump to dance away from their implications. Yesterday DNI Clapper and his agency directors had their detailed briefing with the president-elect. Afterwards the DNI released an unclassified background paper that purported to detail the charges against Russia for hacking the U.S. election. The news commentaries today, Mr. Morrell’s article, and many other speculations, are based on that summary paper.

Unfortunately the DNI presentation again illustrates the same deficiencies already noted here. Barely more than one quarter of the 25-page “intelligence community assessment” is actually substantive. There is almost as much blank paper (cover and back covers, contents, title pages) as that. Five more pages are given over to explanations of what is an intelligence report, a scope note, and tabulations of the probability levels the spooks attach to judgments that range from “remote” to “almost certain.” By far the meatiest element in this report is an only tangentially-related paper–years old we are told, and as lengthy as the entire substantive hacking report–of the way the broadcast outlet RT Television essentially functions in the same fashion as the Voice of America.

The substantive report contains three “key judgments.” These were by nature assessments, not facts. The only real factual statements were that Vladimir Putin ordered the hacking campaign, and that the Russians did not target or compromise systems involved in vote tallying. The analysis underlying these conclusions lies in a five-page paper jointly produced by the CIA, NSA, and FBI, labeled “a declassified version of a highly classified assessment . . . [that] does not include the full supporting information on key elements of the [Russian] influence campaign.” Aside from such public record details as when various Russian outlets, including RT Television, began their coverage of the U.S. election, and characterizations of the content of Russian media coverage and the statements of notables, there is very little in this report. In terms of the massive hacking, the most substantive elements say that Russian intelligence gained access to Democratic National Committee networks in July 2015 and maintained that access at least through June 2016. Russian military intelligence (GRU) joined in by March 2016, compromised personal email accounts of officials and party figures, and within two months “had exfiltrated large volumes of data.” That’s it.

“Scope Notes” are of little value when their purpose is to disguise lack of content. U.S. intelligence understandably wanted to safeguard its sources, and wished to preserve a step-level distinction between the depth of the information it provides top officials versus the public, but General Clapper again failed to make his case to the public, and to Donald Trump the issue is politics, not intelligence. Trump’s response was to declare he will order an investigation of how NBC News found out about some things in Clapper’s report. He referenced hacking by outsiders (including, but beyond) Russia, and said he will seek a report by late April 2017 regarding general countermeasures against hacks. The only Trump statement recognizable from the U.S. intelligence report is his insistence no voting machines were tampered with.


Do They Work for Us? (2)

November 20, 2015–Just a short thing today. John Brennan of CIA is getting much too much mileage out of his tirades on alleged “limits” curbing intelligence effectiveness. The fact is that, if there is blame to be assessed for the Paris (and other) attacks, it is to the CIA, U.S. and Western intelligence at large for failing to appreciate ISIS. The fact is that the Pentagon inspector general right now is engaged in an investigation of the degree to which senior officers at Central Command suppressed the views of intelligence analysts who warned of the morphing ISIS challenge. The New York Times has already carried several lengthy exposes of U.S. intelligence failures over ISIS. Only the reality that Mr. Brennan no longer heads all U.S. intelligence (he commands only the CIA) prevents his being directly responsible. But guess who is? That would be Director of National Intelligence James Clapper. Fearful Leader. No doubt his consiglieri Robert Litt is getting ready to tell us that General Clapper was thinking of something else at the time.

Meanwhile, also since the Paris attacks, FBI chief James Comey has come out of the woodwork yet again to blame it all on encryption of telephone devices. Today’s Washington Post contains the latest round of charges but ends quite usefully by quoting a senior Silicone Valley executive who says the cellphone encryption programs were in development well before Edward Snowden’s leaks and had no impact on their introduction. Considering the time it takes to design, operationalize, and perfect a product, I have no difficulty believing that. The Snowden affair literally had nothing to do with the predicament the intelligence agencies find themselves in today. That’s worth keeping in mind.

And one more thing– where is the evidence–not just jeremiads but evidence–that the Paris attacks were planned using high level encryption programs? The shootout in which the terrorist Abbaaoud perished shows every sign of an incident in which security services had complete knowledge of their target, not likely if police had been stumbling around blindly.

Spooky Lawyer Still Peddling —-

September 10,2015–Better late than never. While running down a remark by our top spook, Fearful Leader Clapper, this morning, I ran right into his senior shyster, the ever-entertaining Robert S. Litt. I missed this when it happened back in May but the message of unreconstructed arrogance is important enough to bring to you today.

As general counsel to the Director of National Intelligence (Clapper), Mr. Litt furnishes advice on all manner of DNI actions, from new directives to the intelligence community to prepping his boss for congressional hearings.

You will recall that two years ago Fearful Leader was caught in a lie before the Senate intelligence committee when he testified under oath that the National Security Agency had no program under which it spied on hundreds of millions of Americans. That Clapper was under oath made the lie perjury. The failure to require Clapper’s resignation for misinforming Congress became another of President Obama’s favors to his spies, but that’s another story. This one is about Bob Litt.

General Clapper actually was more forthcoming than his lawyer. Clapper told reporters that he had tried to answer the question in a way that would be the least damaging for the spy agencies he commands. That represented accepting a measure of responsibility. But Mr. Litt stepped up to insist that DNI Clapper was innocent because he had forgotten about the NSA dragnet surveillance program. Litt compounded that performance, sending letters to the editor of the Washington Post, New York Times, and New Yorker magazine insisting on that construction of events. Fast forward eighteen months. This May, at a panel discussion hosted by the Advisory Committee on Transparency, Robert Litt repeated this preposterous story. At the time he was sitting right next to lawyer F. A. O. Schwarz, who had served as chief counsel to the Church Committee when it investigated the intelligence agencies in the 1970s. It was the secrecy queen and the apostle of openness together at last.

The story from Mr. Litt’s point of view is actually worse than that quick summary. Litt was preparing Clapper for the hearing. He knew that Senator Ron Wyden would be asking General Clapper about the dragnet surveillance–the senator observed protocol and informed the DNI of what he’d be asking. If Clapper forgot Litt’s job was to remind him. If Clapper confused the Section 715 eavesdropping with the Section 702 spookery, correcting that was Litt’s job too. Plus Law School 101 surely teaches that the commission of an act is not excused by innocently thinking something else. Worse, after the perjured testimony Clapper was offered the opportunity to correct it–and there again Litt’s job would have been to alert his boss to the danger and get Clapper to insert a correction. That didn’t happen either.

Now Mr. Litt is sorry. Of a correction letter he says, “I wish we had done that at the time.”

Robert S. Litt is the principal compiler of the ODNI’s chronology of intelligence appreciations and activities in respect to the September 2012 attack on the U.S. consulate in Benghazi, Libya. What should we believe about that?


Spooky Lawyer: Who’s the Real Disgrace?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

Red Flag for the Spooks: The Gathering Storm

July 11, 2014–Remember back in March? What Obama said? The spy agencies served up a menu to President Barack Obama they thought could turn the tables and get them out of deepening scandal. The National Security Agency (NSA) advanced a scheme that, while appearing to respond to criticism of its dragnet eavesdropping, might actually permit it to collect more information on Americans and other citizens. The president thought the option workable. Obama said, “I’m confident it allows us to do what is necessary in order to deal with the dangers of a terrorist attack, but does so in a way that addresses some of the concerns that people had raised.”

Meanwhile the Central Intelligence Agency was counterattacking against Congress on the Senate torture report, claiming the Senate Intelligence Committee had violated secrecy regulations, referring the case of an allegedly purloined document to the Justice Department for criminal prosecution.

Fearful Leader James Clapper must have felt himself riding especially high last week, when the independent Privacy and Civil Liberties Oversight Board delivered its opinion on the NSA’s targeted (as opposed to its dragnet) wiretapping, which expressed itself “impressed with the rigor of the government’s efforts to ensure that it acquires only those communications it is authorized to collect.”

Then it all came crashing down.

In short order a series of developments have blown away the gossamer webs of complacency. On July 6, just a few days after the Privacy Board report, the Washington Post published an extensive expose that reviewed some 22,000 actual NSA surveillance reports, finding that just 11 percent of those intercepted were targets approved by the Foreign Intelligence Surveillance Court. Nine out of ten persons wiretapped were bystanders.

The spooks’ irrepressible consigliere Robert S. Litt jumped up with the its-just-as-we-said defense, remarking that “the most you could conclude from these news reports is that each valid foreign intelligence target talks to an average of nine people.”

That lasted for just two days. The parsing depends on what is a “valid” foreign intelligence target. On July 9 in The Intercept, journalists Glenn Greenwald and Murtaza Hussain revealed that the NSA targeted numerous American citizens, including officials of American Muslim lobbying and advocacy groups, a Pentagon official running for political office in Virginia, and other prominent Muslim citizens. The FBI, functioning as the NSA’s target provider, put out training materials clearly racist in nature, picturing Muslims as conspirators (“Mohammed Raghead”) and fundraising for any purpose as intended to support terrorism.

Let’s go back to that nine-out-of-ten bystander rate. We’re not talking 2,400 terrorists, here, plus everyone they communicated with. We’re talking a small number of legitimate targets–Anwar al-Awlaki is on that list–a much larger list of innocents targeted–and then 90 percent more innocent bystanders in the NSA crosshairs. Once the NSA finds any expression of less than sterling content, the FBI then organizes a sting to entrap the person.

I mentioned the novel 1984 in a recent posting. What could be more Orwellian than this? It is totally illegitimate.

Meanwhile there is the matter of the German spying. The NSA wiretapping of German prime minister Angela Merkel has been deplored for some time. Der Spiegel, the newsmagazine, reports the NSA has its largest listening posts in Europe ensconced near Wiesbaden. As noted here the other day (“NSA: Who’s Damaging American National Security,” July 5), the German parliament has begun to investigate NSA spying in Germany–and the CIA set one of its spies to find out what is happening. German counterintelligence caught the agent. Now we get the everybody-spies-on-allies line from flak Michael V. Hayden (“Michael Hayden’s Faustian Bargain,” April 29). Hayden probably wishes now he had kept his mouth shut. A couple of days ago the Germans arrested a second alleged CIA spy, and their government has declared the CIA station chief persona non grata. That’s the kind of thing that happened between the U.S. and Russia during the Cold War. To have it now with Germany, a close U.S. ally on whose territory thousands of American soldiers and airmen are still stationed, is astonishing. The damage to U.S. national security is evident.

So here’s where it begins. “It” being the swamp that is going to swallow Fearful Clapper and his minions. As I explain in The Family Jewels, these scandals usually have a president defending the spooks, then tossing them overboard when the White House itself becomes implicated. Now Obama is indeed on the hot seat. He promised NSA reforms and said a good scheme has been adopted, only to have American citizens openly spied upon with an enormous army of the also-threatened right behind them. Muslim-American organizations have demanded explanations direct from the White House. Obama had discussed the NSA eavesdropping with Angela Merkel, making undertakings with Germany only to have continued espionage–and CIA spies–revealed. This calls into question Mr. Obama’s leadership of the U.S. intelligence community.

The marker quietly laid down several days ago is that the White House knew nothing about the CIA spies in Germany. That’s a very temporary holding position. Here is a high profile intelligence matter with a major U.S. ally who grants basing rights to American troops and whose cooperation on the Ukraine, in NATO, in Afghanistan, and elsewhere is quite necessary. Obama had already been revealed spying on Merkel. He made promises. The Germans actually tried to negotiate a no-spy pact. Now the CIA is caught with its hand in the cookie jar? In behalf of the NSA? Obama either did not bother to inform himself of what our spooks were doing (which seems unlikely), or he was the ringleader (also unlikely), or the spy agencies are out of control. I think the president will be obliged to demonstrate leadership by cracking down.

Yesterday the Department of Justice announced it is dismissing the CIA’s complaint against the Senate intelligence committee. The shoe is falling. NSA, CIA–welcome to the Brave New World.



Ugly Image in Critic’s Mirror

June 15, 2014–Last week a very irate diatribe against Glenn Greenwald’s book on Edward Snowden and his leak appeared in the New York Times Book Review. From liberal columnist Michael Kinsley, I cringed as I read some of this–and I hoped it would go away. But I’ve seen yet more commentary on this very review since then, so now I think it’s become necessary to say something.

To set the context, Glenn Greenwald is the journalist who worked most closely with Edward Snowden. The latter gave his secret NSA material to Greenwald, filmmaker Laura Poitras, and a couple of other reporters, and they wrote and published the stories which brought the Snowden leak to the public. The book No Place to Hide is Greenwald’s account of his role, of Snowden the man, and his evaluation of the information Snowden has revealed. Much of Kinsley’s review is ad hominem. Greenwald is a “ruthless revolutionary,” Snowden a “political romantic.” The reviewer drags in Julian Assange of Wikileaks–completely uninvolved in this latest fracas–to call him a “narcissist.” Kinsley makes claims as to Greenwald’s procedures, and Snowden’s supposed goal of martyrdom. As an author myself I often confront the spectacle of a review that doesn’t go my way–and I respect the reviewer’s right to whatever opinion she or he may have reached. So I’m going to pass on the pyrotechnics of the Kinsley v Greenwald pie fight–except to say that it appears to me that Mr. Kinsley got himself so worked up over those aspects of his subject that he blinded himself to far more dangerous doctrines proposed in the course of his diatribe.

In the second paragraph of his review Kinsley jumps right in by asserting the world is complex, not simple, and that laws exist against both government eavesdropping on the American people as well as against leaking secret information. “You can’t just choose the laws you like and ignore the ones you don’t,” the reviewer wrote. The truth is, to quote Mr. Kinsley, “It’s not that simple.” It was  the government (of the people, by the people, and for the people) that first chose to break the law–and more than that, to obtain even more leeway by securing changes to the law, using false pretenses to reduce its vulnerability to criminal infraction.

The first question in “U.S. Government v Snowden,” as this controversy can readily be imagined, is which violation is greater, that of spy agencies trampling on the constitutional rights of all citizens while calling it protection–and legal to boot–or the infraction of the citizen who called out the government for its eavesdropping. Snowden has said, rightly, that he swore an oath to protect the Constitution of the United States, not any particular set of leaders or bosses. The president and all those other officials swore the same oath. The Nuremberg principles, which flowed from war crimes prosecutions after the Second World War, enshrined the proposition that carrying out the orders of a superior officer was no defense against a person’s commission or omission of actions that constitute crimes. Bottom line– the NSA and U.S. government actions are not so white, nor are Mr. Snowden’s acts so black, as Michael Kinsley would have us believe.

The central element in Kinsley’s indictment of Glenn Greenwald concerns the role of the press in publicizing Snowden’s leak. Here the reviewer lets the personal intrude on the institutional. Ask Michael Kinsley on any given Sunday his view of the Fourth Estate as a pillar of democracy and I’m sure he would say the right thing. But, unminded by his vision of Greenwald the revolutionary, here Kinsley writes “it seems clear, at least to me, that the private companies who own newspapers, and their employees, should not have the final say over the release of government secrets.”

In that alternate history timeline there is no purpose to a whistleblower, because only government decides what becomes known. There is also no democracy, for that exists only when a people have the knowledge to rein in their government.

Kinsley further writes that Mr. Greenwald, in citing evidence that the majority of citizens now agree on the oppressiveness of this eavesdropping, undermines his own argument. The ability to hold that opinion, the reviewer observes, shows that dissent has not been suppressed. But again, it’s not that simple. Citizens can hold the opinion they do because they learned of what the NSA is up to courtesy of the Snowden leak, brought to them by Greenwald and other journalists. Not Greenwald but Kinsley undermines his own argument.

Let us not forget that government, in the form of the NSA’s superior, Fearful Leader James R. Clapper, the Director of National Intelligence, lied to the public, through Congress, when asked directly about this same information. Fearful Clapper did so with no compunction, invented some mumbo jumbo about mental distraction to pass off this serious dereliction of duty, and even took the BS to a higher level by sending out his top consigliere to make the same claim.

These are the people Michael Kinsley would have as the arbiters of what citizens are permitted to know. Kinsley’s imagined America is not our country, it is the land of 1984. If that were to be abetted by an emasculated press it would be a tragedy. Personally I don’t think Mr. Kinsley really wants what he appears to have been writing about.

U.S. Intelligence Tied Up in Knots

June 8, 2014–Time for an update. I considered headlining with a question, “What Does Ruthenia Say to U.S. Intelligence?”–then the fanciful rejoinder, “You speak with forked tongue!”–but that was too facetious. I decided it’d be better to let the spooks get themselves into trouble directly. They’ve been very good about that lately, so good that you have to wonder what they are doing calling themselves “intelligence” agencies.

First let’s observe the antics of intelligence community top lawyer Robert S. Litt. The always entertaining consigliere to our spy chieftain, Director of National Intelligence (DNI) James Clapper, Litt has been working both sides of the street lately. Late in April the nation, along with quire a few other countries, celebrated “Sunshine Week,” a occasion that marks efforts to reduce government secrecy, encourage openness, freedom of information, and the like. Eager to obtain some official pronouncement, sponsors invited intelligence officials. Under pressure to get out in front of the public relations disaster that has been the NSA eavesdropping scandal, Fearful Leader Clapper handed this assignment to his consigliere. Lawyer Litt appeared at American University’s law school on April 20. This was the consigliere attempting to charm his audience.

Part of Mr. Litt’s good cop routine was where he declaimed that “These leaks have forced the Intelligence Community to rethink our approach to transparency and secrecy. We have had to reassess how we strike the balance.” He claimed credit for the ODNI on the website “IC on the,” where the spooks have been posting pieces of legal filings and decisions they have long kept secret. He repeated what General Clapper had said elsewhere–the spooks would have taken less heat if they had only been forthright about their eavesdropping. He concluded with three “principal steps” to be taken: high-level attention to the problem of overclassification, efforts at “proactive transparency;” and, the need for a commitment “to look critically at all potentially responsive documents” that could be released.

It sounded pretty good if you didn’t know the spooks’ real status. Most important, the statement that openness would have trumped the NSA scandal is not open to judgment because the spooks were confidently saying nothing on the assumption that secrecy would protect them. Once the Snowden leaks began to put surveillance issues on the table the spooks still said nothing. Mr Litt took credit for the “on the record” website as if it were the spies being pro-active for openness whereas the truth is that President Barack Obama ordered Fearful Leader Clapper to set up that site and pack it with the NSA legal papers. Odds are that Clapper objected to releasing those documents until he saw he had no choice except to do so.

A different measure of proactive transparency is the content of the intelligence community website. In fact, it contains no document of any nature other than what ODNI was directed to declassify. Contrary to some of the press releases on that very website, even on the eavesdropping projects there are no program histories, no progress reports, no inspector general audits, no cost data, no analyses of effectiveness; just the antiseptic claims of legal memos filed to the Foreign Intelligence Surveillance Court. More than that, the website page that deals in “oversight” contains nothing on the extensive congressional controversies ignited by the Snowden leaks, merely the response to one senator’s specific query, plus a series of items to suggest that officials solicited views on how they could protect civil liberties. There is an April report by a brand-new NSA civil liberties and privacy office which contains no analysis whatsoever of spooks’ behavior but reiterates claims the agencies have already made for why citizens should not fear the NSA dragnet. The section of the website that records officials’ public statements, for the man charged with civil liberties protection, contains nothing more recent than August a year ago, when he was claiming to the government’s Privacy and Civil Liberties Oversight Board that questions it was posing had already been answered by an anodyne (and boiler plate) briefing. The most recent entry for Fearful Leader Clapper himself was two months old.

This is the norm, not the exception. Take the CIA website. Five directors ago Porter J. Goss took measures to reduce CIA’s extent of contact with the public, including making its website less open. Michael J. Hayden, who additionally terminated most outreach by CIA historians, at least compensated by reinvigorating the website and posting his own speeches and press comments, a practice which Leon Panetta continued between 2009 and 2011. But David Petraeus shut that down right away. John Brennan has, if anything, closed the door even tighter. Today the “news” that merits a press release on the CIA site is its pathetic joke, in connection with its first twitter post, that it will not “confirm or deny” its use of those very words in that message. The “press release” previous to that was on May 22 and carried the director’s Memorial Day message. The most recent speech from the director dated from March 11.

If that amounts to proactive transparency I’m a fruitcake.

Meanwhile, Consigliere Litt worked the other side of the street. His speech asserted that “none of the leaks has shown that the government was engaged in any willful violation of law”–apparently constitutional violations do not breach “law.” The assertion ignores the conclusions of two review boards and a federal court decision and is, at best, arguable.

Mr. Litt excused NSA’s efforts to defeat encryption systems built into commercial software–a matter that is the subject of another law–with the glib comment that that’s what spy agencies are supposed to do. All of which makes it rather hard for U.S. high tech firms to convince their foreign customers that American-built equipment and our software are kosher. Small wonder that corporations’ cooperation with the NSA eavesdropping has evaporated faster than a plate of ice cubes in the desert sun, or that corporate officials, like Google’s chief of security, Eric Grosse, are saying, “No hard feelings, but my job is to make their job hard.”

Two days ago Consigliere Litt was back–in an appearance not noted on the ODNI openness site. Now he laments the “unquestionable loss for our nation that companies are losing the willingness to cooperate.” Mr. Litt is quick with the threat too: “sooner or later there will be some intelligence failure and people will wonder why the intelligence agencies were not able to protect the nation.”

The spooks are actively blaming the messenger, resisting any conclusion that their own spying, not the revelation of it by a disaffected employee, is what has damaged the nation. They would prefer to construe their parochial interests as the national security. I know I have written this before but it is more true with every passing day.

By definition every intelligence failure involves an inability to protect the nation, and if there is one element of commonality that extends across the board of these failures, it is the petty jealousies and private competition among the spy agencies, not the fact of whether or not the spooks are sucking up every single type of data that might be technically feasible. More often than not–and that includes 9/11– the data was in the system but the agencies didn’t share it. For 9/11 specifically (which we’ve discussed in this space before), the terrorists who would have been revealed by the NSA metadata, which at that time was not being collected, were in the system at least two other ways. Robert Litt’s invocation of the threat of an intelligence failure to justify intrusive spying is not only scaremongering, it is disingenuous.

So the spooks’ alleged privacy protectors tell us everything’s fine? Well, last week’s news was that NSA is pulling down photographs transmitted on the web, incorporating the ones good enough for facial recognition into its database–at a rate of 55,000 a day. I guess they don’t think that’s a privacy breach. Our new NSA chief, Navy Admiral Michael A. Rogers, hastens to assure the public that the database is only intended to look for foreign spies. Naturally that remains true only until it’s not. Ambitious leaders, unscrupulous investigators, all-important goals–any number of factors can combine to override supposed protections, exactly as happened the day after 9/11. It’s better not to have the temptation.         

Meanwhile, Fearful Leader Clapper, out of character for a brief moment, said this weekend that Snowden’s leaks have not been so damaging after all. Why? Because Snowden did not take with him so many documents as the NSA had feared. Edward Snowden has said that all along. The spooks did not believe him–or they used the larger number to magnify the alleged damage, hoping to obtain a better outcome from the scandal. One of the documents on the DNI’s openness website is the December 2013 preliminary report on the impact of the Snowden leaks. The review board “assesses with high confidence that the information compromise by a former NSA contractor . . . will have a GRAVE impact on U.S. national defense.” Reminiscent of the “declassification” of the now-notorious national intelligence estimate on Iraq’s supposed weapons of mass destruction, used to justify George W. Bush’s invasion of that country; the released “document” amounts to a few paragraphs out of dozens of pages of detailed argumentation. You could drive a truck through the redactions–and you can make a document like that say anything. Proactive transparency? More like spin-doctoring. All this is so far removed from the intelligence community’s vision of “speaking truth to power” that it’s embarrassing.

Catching Up with Robert Litt

May 21, 2014– Remember spook superlawyer Robert S. Litt? He’s featured here several times. Litt was the one who told Fearful Leader Clapper that it was an adequate explanation of his lie about NSA dragnet eavesdropping to say he was “thinking about” something else. There’s plenty more. I haven’t got time at the moment, and I also hoped to post something about the imminent Justice Department release–under court order–of the drone war legal memos–but I couldn’t let the Robert Litt news pass without comment.

Representing General James Clapper, the director of national intelligence, Litt attended the House Rules Committee markup session on new legislation that supposedly will restrict the National Security Agency eavesdropping. Litt was instrumental in leading the legislators to weaken their bill, substituting a vague definition for what requires court approval. The House had already left it up to the administration to define the broad category limits–probably the equivalent of giving your teenager the car keys without thinking about it–but that wasn’t enough for the spy mavens. They preferred a definition which enables them to nominate categories and thus obtain broad swathes of data anyway. The result is so obviously flawed that a number of backers of this bill have withdrawn their support.

Here’s the question: Did the director of national intelligence cynically manipulate the bill in order to ensure its defeat, did he–represented by Mr. Litt–engineer a happy solution that leaves the NSA virtually unfettered, or were General Clapper’s objectives both of these things?

NSA: Clapper’s Solution to Lying

April 2, 2014–General James Clapper has had enough. He can’t take any more. The Director of National Intelligence, tired of being caught lying when confronted with questions from his congressional overseers, has finally contrived a solution: don’t answer.  Then, months later, reply quietly in a letter and hope that no one pays attention.

So it is with the latest evidence of intrusions by the National Security Agency’s eavesdroppers. Predictably, it was a question from Oregon democrat Ron Wyden at a January 29, 2014 hearing of the Senate intelligence committee that brought on this maneuver. Asked if the NSA had, in fact, conducted warrantless searches of Americans’ phone calls, Director Clapper replied, “There are very complex legal issues here,” and then clammed up.

Two months later, with the public’s attention diverted to the crisis in the Crimea and the breakdown of Israeli-Palestinian talks, Clapper sent Senator Wyden a letter which affirmed the truth, albeit in spookspeak. His March 28 letter stated, “there have been queries, using U.S. person identifiers, of communications lawfully acquired to obtain foreign intelligence . . . . As you know, when Congress reauthorized [the relevant section of the FISA Amendments Act], the proposal to restrict such queries was specifically raised and ultimately not adopted.”

General Clapper could not do other than affirm the truth behind Senator’s Wyden’s question. Documents revealed by Edward Snowden last summer already show this to be the case. The DNI himself, under orders from President Obama, divulged FISA Court rulings that further confirmed this. So did an August 2013 compliance assessment from the NSA and Justice Department which found instances of these intrusions. Where are the “complex legal issues” that prevented Clapper from answering the question at an open hearing? My guess is that they were reporters and cameras.

Let’s deconstruct the substantive defense in the director’s March 28 letter. General Clapper relies on three elements: that the phonecall contents were legally obtained, that the actions occurred under FISA court judgments ruling them consistent with the law and the Fourth Amendment, and that Congress had considered and rejected a change in the law underlying the eavesdropping while renewing it.

Phonecall contents were obtained legally only in the sense that some FISA document referred to the activity in some fashion. As we should know by now, the intent of the 1978 law was to ensure that all wiretaps were covered by specific court orders. That’s different from this eavesdropping. Clapper’s top lawyer Robert S. Litt told the Privacy and Civil Liberties Oversight Board on March 19 (reported here in “Spy Scandals Update,” March 20, 2014) that it would be an inconvenience for the FISA court to have to rule on every request for a wiretap. Litt actually implied there are a substantial number of these kinds of intrusions when he said the number was much greater than 288–the figure for queries against “metadata” found in blue ribbon panel reviews of the NSA traffic analysis intrusions. Interesting that.

Clapper’s second point is demonstrably false. There was no FISA court opinion which considered the application of the Fourth Amendment to this spying until very recently. When an August 2013 review found transgressions that opinion was not on the books. The validity of that opinion can still be disputed but the point is that it did not exist at the time of the violations. As for the argument that Congress rejected changing the law, the question there is whether the NSA and DNI were truthful at the time in what they told the legislators about the real threat, their alternative means, and the bottom line requirements. Judging from the intelligence community’s track record, the likelihood they were honest with Congress is very low.

These are exceedingly thin reeds. Thus are Family Jewels shielded, by desperate defenses. As Senators Ron Wyden and Mark Udall put it in a joint press release yesterday, “This . . . poses a real threat to the privacy rights of law-abiding Americans. If a government agency thinks that a particular American is engaged in terrorism or espionage, the Fourth Amendment requires that the government secure an authorization before monitoring his or her communications. This fact should be beyond dispute.” General Clapper’s credibility as a spokesman for U.S. intelligence remains near zero. He should go. President Obama needs to make that part of his NSA reforms.