Senate Intelligence Committee’s Mojo Coming Back?

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

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

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

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

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

Obama’s Legacy on Torture

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

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

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

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

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

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

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

Coming Out of the Woodwork: The CIA Purge

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

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

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

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

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

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

Peruvian Days

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

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

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

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

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

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

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

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

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

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

CIA’s Brennan Senses the Abyss

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

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

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

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

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

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

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

Michael Hayden: Voice of the Fabulist

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CIA: Do They Work for Us?

November 17, 2015–Readers here will have seen me from time to time lamenting the antics of people like Fearful Leader–Director of National Intelligence James Clapper–or agencies such as the CIA and NSA. It’s time to do it again today. It seems the security services have forgotten that they work for the American people, and not the other way around. Let’s be certain no mistake is made here.

Yesterday at a Washington think tank, the Center for Strategic and International Studies, CIA director John O. Brennan used the occasion of the Paris attacks to make strident demands for new powers of investigation, intrusive and insistent. It is stunning–and shabby– that the CIA director should use the tragedy of the Paris attacks to advance these demands. They involve a question already asked and answered. There was a presidential decision. It went against the CIA. Who does Brennan work for?

I let pass an opportunity to comment some weeks ago, when the current FBI director, James Comey, went around demanding that the NSA and FBI be given the power to dictate encryption standards for communication devices, or at a minimum that the security services have a “back door” built into encryption programs so they can surreptitiously read messages people think are secure. I thought the issues had been thoroughly aired in the debate after the Snowden affair. Congress has passed a law. In the last week the Courts have again ruled the NSA eavesdropping unconstitutional. And even President Obama, friend of the intelligence agencies, ruled against Comey’s demands.

Then come the Paris attacks. Yesterday I commented on Fearful Clapper latest mongering. Afraid even to reveal his name, Mr. Clapper set the stage for Brennan’s CSIS appearance, and his remarks spy chieftain Brennan presses for the same things Comey did. As if the decision had not already been made. As if CIA can force Obama to reopen the question. As if the security services can reargue any issue until it comes out the way they want. It’s the same arrogance CIA displays over declassifying its dirty laundry on torture.

At Reuters I posted a piece on manhunts in the wake of Paris. There is good reason to suppose the attacks will end up damaging the jihadi perpetrators far more than the French republic.  This is with only the presently-existing techniques. (And, indeed, I am not aware the security services, U.S. in particular, are short of any technology or authority they need to find the bad guys.) Do not listen to the fear mongers!

CIA Torturers Talk Back

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

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

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

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

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

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

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

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

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

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

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

The CIA’s Coming Watergate

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

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

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

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

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

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

The first rule of holes is to stop digging.

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

Tantrum to Practical: All Grandfathers are not Equal

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

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

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

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

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

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

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

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