Is the Cover-up Worse than the Crime?

March 29, 2017–Just back from a research trip. There were many days I longed to post here–so much has happened in the past several weeks. There was President’s Trump’s sudden accusation, leveled at predecessor Barack Obama, for personally wiretapping him last year. Then Trump’s dark hint evidence would emerge within a short time corroborating his charge. Then Representative Devin Nunes, chairman of the House Permanent Select Committee on Intelligence (HPSCI) trotting up to the White House, mysteriously to be permitted to see the “evidence,” so he could step outside and run interference for the president yet again. That’s not the half of it. The fabulous Michael Flynn, it turns out, failed to register as a foreign agent while pocketing money from abroad, even while working with the Trump campaign. He also failed to obtain the required permissions from his former military colleagues. The president’s son-in-law, Jared Kushner, held meetings with the Russian ambassador, as well as bankers linked with the Kremlin, during the presidential transition. Impressario Roger Stone now concedes he was in touch with Russians as well as the web presence (individual? organization?) the Russians used as cut-out to toss hacked American political emails to Wikileaks last year. The FBI has affirmed in pubic that it  is conducting an investigation of the Trump campaign’s ties to Russia. And Paul Manafort, erstwhile Trump campaign manager, has now been tied to cash transfers from Russia through Cyprus.

Meantime the selfsame Congressman Nunes has, deliberately or not, robbed HPSCI of all its credibility in investigating the Russian caper, since–despite his responsibility to be even-handed as committee chairman–Nunes has now repeatedly rushed to defend Trump and his political campaign even while supposedly investigating that very entity. Nunes has also cancelled open hearings that were intended to gather evidence. This sounds like nothing other than a pre-emptive defense.

Over the past few days there has been a veritable rush to volunteer testimony to congressional investigating bodies. Among those suddenly clamoring to be witnesses–where before they insisted there was no there there–are Messrs Kushner, Manafort, Stone, Carter Page and others. Beware the Iran-Contra poly–during the Reagan administration’s Iran-Contra scandal the fact of having testified before Congress became a protection against criminal prosecution, because multiple courts dismissed prosecutors’ declarations they had obtained the same evidence independently of what had transpired before Congress.

Events also evoke the old Watergate adage: the cover-up is worse than the crime. Playing with the Russians, so long as it did not involve espionage or embezzlement, violated only limited numbers of statutes. Apart from a possible cut-out on the American side (Roger Stone?), for whom hacking and computer information laws may be implicated, legal liabilities remain fairly limited. But lying to the FBI is a felony crime, as is obstructing justice (say, by interfering with an investigation), or manufacturing “evidence” on a different allegation with an intent to distract or mislead an inquiry. The president’s spokesperson, Sean Spicer, skates on thin ice here. God knows what it cost Ron Ziegler, Mr. Nixon’s spokesman, to follow his boss during Watergate.

For those who favor investigation by a 9/11-style panel or a special prosecutor, so far the allegations lack in drama what they actually do possess in importance. Absent such a dramatic development–along the lines of the 18-minute gap in Mr. Nixon’s audiotapes, or the Oliver North destruction of evidence–the administration should be able to confine inquiries to conventional paths. My bets for the locus of such developments are (1) evidence of positive acts taken to backstop Mr. Trump’s tweets; or (2) concrete confirmation of deals between Trump campaign figures and the Russians.

For the moment everything rides on the Senate Select Committee on Intelligence (SSCI), which, unfortunately, found itself emasculated during Barack Obama’s dark hours trumping the CIA torture investigation. Under its current chairman, Republican Richard Burr, there is not a lot of confidence the SSCI can investigate a paper bag.

Hold on to your hats!

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.

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.

Hillary email Update

February 6, 2016–News continues to boil about secret information allegedly contained in emails sent to Hillary Clinton while she was secretary of state in the first Obama administration. The emerging record continues to confirm what I’ve said in this space: that senior officials of the intelligence agencies, with nearly a year now to pore over Hillary’s email cache, plus their own fish to fry–and demons to fear–find it irresistible to range backwards in time to cast veils of secrecy over information that was in the public domain.

Latest reports add to our point, originally taken from press reporting about the CIA drone war. Other emails apparently pertain to the North Korean missile program, and to events in the Libyan revolution. Some of the 22 emails over which classification is asserted apparently contain the special access slug “HCS-O,” which pertains to human intelligence sources, although officials hasten to add that no specific names of sources or CIA officers actually appear in the emails.

Two more fresh items add to our update. Just yesterday, it was reported, other, similar emails, containing information discussed in classified materials exists in the personal communications files of former secretary of state Colin L. Powell and national security adviser– then secretary of state– Condoleezza Rice. Powell has been quoted responding that it was understood his emails were his–and were not classified. There’s been no response so far from Ms. Rice.

The facts are not what our spooks seem to think. Global events are visible, attract attention, and trigger discussion and analysis. The drone war, to cite our starting point, is watched and remarked upon by a wide range of media outlets, human rights organizations, international entities, think tanks, and national governments (and their own security services). The fact that secret ODNI and CIA documents discuss the same matters does not make those subjects classified. The spooks’ attitude is that even specific CIA information, if it becomes available from any source (such as a leak) other than declassification by the CIA remains secret!

Plus, there is declassification and there is declassification. The CIA quietly releases secret information to an author or journalist, for example, in the expectation that books or articles will show the spooks in a positive light. Yet at the same time others who might request the same or similar information be declassified are denied, told the agency will neither confirm or deny the very existence of the information, or told outright it does not exist.

The other new development is the revelation of “eyewash”–someone’s adaptation of a term of art used by CIA disguise artists. According to these reports eyewash describes a category of documents that move over regular CIA channels that contradict memos or messages which circulate in hidden channels. This is described as a mechanism to reduce the circle of officials knowledgeable about some subject, but it’s much bigger than that. For decades we have known about backchannel and front channel–where the important message goes over the (secret) backchannel and the idle chatter on the (less sensitive) front channel. Nixon’s covert operation against Allende in Chile was facilitated by “Track II,” exactly such a device. The CIA’s destruction of its torture videotapes in 2005 was implemented by a backchannel message to a station chief that ordered that person to put in a request on the front channel, using certain specific arguments and rationales, for authority to destroy the material.

The difference between “eyewash” and backchannel is that in the former the front channel traffic is positively designed to be false.

This is described as a security technique. In its simplest form the safety of an agent is protected by giving broad distribution to the message that says the operative is dead, while tightly restricting the message that gives the spy a different codename and reports his information. For a moment that sounds OK–until you realize the same technique can be applied to deluding the Senate intelligence committee that the Panetta report had no meaning, that the CIA’s hit team operation (Project Cannonball) had long been stopped, or, indeed, that CIA remains responsive to congressional authority at all.

Such methods are worse than unacceptable. Here is an intelligence agency, whose whole purpose is to tell truth to power, where the biblical proverb “the truth shall set you free” is actually carved into the marble wall, indulging in the practice of actively lying– not to the enemy, not is a deception operation, but in official records that will be seen by anyone dealing with the agency on its business–in other words, CIA officers, their bosses, the Congress,  the president.

Meanwhile the same intelligence community is presuming to comb over the private emails of its executive branch masters, such as Hillary Clinton or Colin Powell, and denounce them for having information in messages that spooks decide in retrospect should have been classified!

This is a scam.

As I argued in some length in The Family Jewels the intelligence community has long since passed the point of safeguarding legitimate secrecy in favor of practices designed to protect its own interests–political and financial as much or more than operational. “National security” is expanded–bloated–to hide that. And what I said here last summer (“Hillary’s Emails: Bursting the Secrecy Bubble,” August 22, 2015), I repeat here today: the secrecy rules have become so bloated that senior officials can no longer do their jobs without violating them. It’s time to change the rules, not prosecute the secretaries of state. While we are at it, the CIA and ODNI need to be taken out of the business of declassification.

The Church Committee at 40

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

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

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

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

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

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

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

Torture and Eavesdropping–Do the Spooks Get a Pass?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

 

The NSA Watch

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

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

CIA ! Sshh !!! OMG–PR !!

December 12, 2014–You know the Central Intelligence Agency (CIA) is in trouble when they hold a press conference. Amid the fires on Playa Giron at the Bay of Pigs, the swirling assassination charges of the Phoenix Program, the cynical denials to Congress that the agency had had anything to do with those fellows dropping supplies to the Nicaraguan contra rebels, charges the agency was running guns to Bosnian freedom fighters–never a press conference.

It’s odd, really. There are obscure federal agencies but nothing so opaque as this. Aside from our vaunted “intelligence” community, what others are there who employ tens of thousands of people, whose budgets amount to tens of billions of dollars, whose programmatic activities kill people, who are subjected to this level of scrutiny? I can’t think of one. Can you?

What level of scrutiny? Their budgets are secret. It was a struggle of more than six decades to require U.S. intelligence to divulge even an overall figure for the amount spent on this function each year. Their authorities are classified. Officials appear at nomination hearings and feed senators a load of horse**** and then disappear into the secret world. Agency spokespersons make numerous statements for publication on stories in the public domain that have no traceable texts or physical existence. Freedom of information and sunshine laws are interpreted any way they damn well please. Agency officials appear in Congress at open hearings almost only for the purpose of threatmongering, stoking public hysteria while warding off inquiry. Everything is all about image.

The kind of regulatory hearing that preoccupies most federal agencies hardly matters to the spooks. Until 1967 the CIA had never appeared before a congressional committee for purposes of accountability and then the hearing was secret. Until 1975 neither CIA nor NSA had been in open hearing either. Indeed the public is kept ignorant of the most basic information necessary for regulatory purposes. The congressional intelligence committees are supposed to stand in for the public, but we see repeatedly how they are deceived. Each time the spooks explain those manipulations as inadvertent mistakes or clumsy errors, or accidental misplacements of records, but the pattern is plain to see. In my book The Family Jewels I showed at great length how the CIA massages image by influencing journalists and using declassification rules. In the present instance of a senate investigation of the CIA, agency officers hacked into the computer systems of regulatory investigators. In spy tradecraft the word for that is “countersurveillance.”

Some journalists have written breathlessly of yesterday’s press conference with CIA director John O. Brennan as “unprecedented.” Where that adjective applies is the care the agency took with its image. Take the venue. Brennan had the press in the atrium of the CIA headquarters building, where stars are carved into the marble wall representing CIA officers fallen in the line of duty. He made sure to refer to the wall, and the stars, in the course of his 45-minute exchange. Obviously nothing could be more disruptive to agency business than to have a public event in the main entry area. This is especially true in that when the Langley complex was built, designers carefully included an auditorium area–affectionately known as “The Bubble” (it even looks like a buckeyball)–outside the main building so that events could be held without impacting the secret work of the spies.

There have been CIA press conferences in the past. Bill Colby held a couple in the heat of the scandals of 1975 with the Church and Pike Committee investigations pressuring the agency to respond. My favorite was at the height of the flap over news the CIA, in support of its Nicaraguan secret war, had flooded Los Angeles with drugs. The CIA director actually flew out to LA for that session and it got national TV coverage. Then there was the time the CIA  was caught misleading the congressional oversight committees (again!) on its ties to Guatemalan army officers responsible in the murders of American citizens. Both of those were in the Clinton administration. That’s pretty much it. I might have missed a couple, but for an agency whose history spans sixty-seven years that’s not a hell of a lot. Notice the pattern? As I said up top, the press conference is a sure index of CIA nervousness.

Now to substance. Director Brennan set the context as carefully as he chose the venue. He spent nearly half the time on his opening statement, which was long on 9/11 and the atmospherics of those days. Some might dispute this, since references to the program were scattered through Brennan’s remarks, but my reading was that the CIA bossman passed over the substance of the torture program in a single paragraph (which noted it had approved by the president and the Department of Justice).

Brennan went on to the senate investigation, disputing it, asserting the CIA had acknowledged mistakes, and lambasting the Senate intelligence committee for a one-sided report for which investigators interviewed no one. He used the word “unprecedented” to describe the amount of help CIA gave the investigators. Nary a word about countersurveillance, about the CIA’s doing an internal survey covering the materials the Senate might get its hands on, CIA’s criminal complaint against the investigators to the Department of Justice, or its long foot-dragging on providing evidence, which had actually forced the president’s White House counsel to broker a deal between the CIA and the Senate committee. I don’t think Brennan actually used the word “partisan.” Instead he compared the new report unfavorably to the Senate intelligence committee’s “bipartisan” investigation of the Iraq WMD intelligence. Too clever by half. The whole problem with the Senate WMD investigation was that it was not bipartisan, but rather, driven by a Republican majority–precisely the way the CIA is wont to characterize the present effort. Apart from that, the CIA behaviors noted above might be likely to engender a certain investigatorial ire, no?

Director Brennan picked up another point from the chorus of former spooks who are shrilly screaming from the sidelines. Interviews. In the Iraq WMD inquiry, Brennan noted, some CIA officers were interviewed as many as four times. With torture, none. But Mr. Brennan left out the Justice Department obstruction of justice inquiry that proceeded in tandem with the Senate investigation. The CIA played the Ollie North card here. The prosecution of North for his role in the Iran-Contra affair failed because he had spoken to Congress on the substance of issues for which he was indicted, which left the evidence tainted. Here Justice’s obstruction inquiry took precedence over the Senate intelligence committee’s investigation. The senators had another source, though. They used the interviews conducted by CIA’s Inspector General in an internal investigation into the torture. That proved sufficient for the Senate investigation but not for Brennan and the cheerleaders. Note the play: the Senate is prevailed upon to give a free hand to the Justice inquiry; the CIA pressures the White House to drop Justice charges against its officers; then the favor Senate investigators did for Justice is used to discredit the Senate’s own inquiry.

In his defense of torture Director Brennan made much of another canard that is becoming popular among the cheerleaders: “knowability.” Now that torture has been applied, the argument goes, it is not possible to know what information the detainees would have provided if they had not been tortured. This is a straw man claim that relies on a false application of an analytical concept. In fact, “knowable” is a specific philosophical term in the intelligence business. It refers to what is beyond the realm of knowledge. In Cold War days when CIA analysts were projecting the size of Russian missile forces five to ten years in the future, they were making predictions about production decisions Soviet leaders were only going to make three to five years into the future. Those decisions were unknowable.

With the detainees CIA tortured, “knowable” does not even apply. The fact is that we have evidence, in CIA cables, that the subjects gave out information before they were tortured. The likelihood is that good interrogation practices would ensure that flow of data continued. The kinds of details cited by Mr. Brennan and in the CIA’s response document to the Senate report are ones likely to have emerged anyway, over time. With or without torture I don’t see that CIA tracked down Osama bin Laden especially quickly. They could have taken a little bit longer and conducted a legitimate interrogation. As detectives “detect,” so intelligence officers are supposed to analyze. “Knowable” has nothing to do with it.

Brennan and company are essentially saying torture is a convenience. To engage in morally reprehensible actions for convenience is unacceptable on so many levels we shouldn’t even be talking about it. It is high time to enforce accountability on CIA. Instead of accountability we get posturing and invocations of fallen heroes to justify a shabby present. The system is broken. Public relations is not oversight, nor is accountability vague pleas that the agency has heard the complaints and made appropriate changes. Accountability is explicit, specific, and it involves personnel decisions, not to mention open covenants openly arrived at.

The Real Deal on CIA Torture

December 11, 2014–“It’s all a bunch of hooey,” says former Vice-President Dick Cheney of the Senate intelligence committee’s investigation of CIA torture. He should know. After all, he sat at George W. Bush’s side when the torture programs were ordered and approved. It is hooey–at least the way CIA officers, retirees, and one segment of the media are portraying it–and not for the reasons they say.

I agree the agency was no rogue elephant. That the CIA went its own way is hooey. Langley remained at all times under complete control of the Bush White House. CIA has only one boss. President Bush ordered the torture. (Investigating that was not within the scope of the Senate investigation–and you can bet that beyond top secret classification levels will shield every White House and NSC document on CIA torture for decades into the future.)

There’ve been whispers in the media over the past few days that some minions advised Mr. Bush to use the Senate torture investigation to distance himself from the agency. Neither he nor Mr. Cheney has done that. Rather, they have asserted they were in control, though they’ve permitted circulation of claims they remained ignorant of details. Bush is pictured almost heroically, refusing to be briefed so he could not inadvertently leak crucial data. That is hooey. The reason to not be aware of details is Alberto Gonzales’s reason, to preserve a fig leaf of cover and shield Mr. Bush from criminal liability.

It is hooey–as Wolf Blitzer put it to Senator Dianne Feinstein–that if Americans die or are injured in protests resulting from the emergence of the CIA torture information, that will be on the Senate intelligence committee. Shoot the messenger again, why don’t you? It is the CIA torture, not the investigation of it, that bears consequences. Those consequences would still exist if there had been no investigation. The situation would have been like an IED waiting to explode.

It is also hooey what our former spooks have been saying. White House authorities and cursory review from a Justice Department wannabee secret warrior do not eliminate a stack of international conventions, common law, and the U.S. code. The law is absolute. It applies to everyone, including wannabee secret warriors and presidents. The responsibility of George Tenet, John McLaughlin and their successors was to tell the president the U.S. could not go as far as Dick Cheney wanted.

There is more hooey in disputing the facts of the Senate investigation. Why is it that Michael V. Hayden, Jose Rodriguez and Republicans in the Senate have not been able to make stick the charge that this is a mere partisan attack by a political party? Robert Grenier, Rodriguez’s successor at the head of the Counterterrorism Center, accused the investigators of “cartoonish findings.” Yet the wave of criticisms, mounting toward tsunami proportions, continues past one day’s news cycle, not abating. It is because the intelligence committee report consists almost entirely of quotations from CIA documents strung together with connective text. This report is so damning because it consists essentially of CIA paper.

It is hooey to argue the CIA was informative and fully responsive to congressional overseers. Indeed CIA dishonesty is inherent in what it does assert–that it was responsive within the secrecy parameters set by the White House. Here, again, we have a question of law and custom. By custom, executive order, and statute, CIA is required to inform Congress. But the record of the past decade and a half–on issue after issue, not just the CIA torture–has been one of manipulating who got to hear what, when and how. The stupid dispute about what Nancy Pelosi knew and when is just a case in point. It was symptomatic of this manipulation that the full intelligence committees received their first comprehensive briefing on the CIA torture just hours before President Bush declared an end to CIA black prisons and sent the detainees to Guantanamo. It is equally revealing that the Senate report’s two dozen examples of CIA dissimulation and deception are all drawn from that same 2006 briefing, which the CIA now says was one for which they could have prepared their director better.

Rather sounds like Fearful Clapper, the director of national intelligence, telling Congress that his lie, about the NSA not spying on millions of Americans, wasn’t really a deception because, allegedly, he was thinking of something else at the time. Doesn’t it?

Or, how about the CIA hit team project for assassinations? That was kept from Congress for at least three years after it was an operation, even though the congressional committees are supposed to be kept “fully and currently” informed.

Former CIA people and Bush White House officials have lost their moral compass. This is not about the formalities of White House approvals, the cursory legal review, or the kabuki playing of the congressional oversight system, it is about human rights, and the legal rights of individuals. And public opinion, including international public opinion, matters.

I have used this example before but it is worth revisiting: French Army officers made the same mistake in the Algerian war. Faced with an overarching threat they tortured to find and defeat an insurgent enemy. Public charges arose, just like with the CIA torture, which were denied in terms that might almost make today’s CIA people plagiarists. The French thought they had gotten away with it. A legislative amnesty was voted, later a presidential pardon issued. But time after time after time the torture charges came back to haunt the officers. Indeed, another court trial flowing from the Algerian torture took place even while the CIA black prisons were active–nearly five decades after the Algerian war. Just to seal the point, today’s newspaper contains word that in Brazil, where the military tortured dissidents in the 1960s, and where a legislative pardon was also issued, the recommendation of a truth commission is to prosecute the perpetrators after all. Again that is five decades after the fact.

The international criminal liability of CIA officers and Bush administration officials is a live issue. It will not go away. That is why President Obama erred so badly in not dealing with the CIA torture right after taking office in 2009. The fight over releasing the torture report shows just how entrenched the forces of repression still are. They will become increasingly desperate. And they still hope that fig leaves will protect them.

 

 

 

The Torture Report: She Said, He Said

December 9, 2014–So it’s out. Finally! Despite every imaginable kind of pressure to keep the lid on this atrocity, the emergence of the Senate intelligence committee’s investigative report could not be prevented. Now the chips will fall where they may. There are a host of items on this platter, enough substance to keep a battalion of analysts busy for weeks–plus more added by the CIA “response paper” of June 2013, which the agency released to counter the Senate report. There’s no possibility of conveying more than first impressions, but overall I will say the combination of the two documents is odd. The CIA’s response paper largely accepts  the criticisms of the Senate investigation, then disputes the intelligence committee’s chapter and verse, leaving Senator Dianne Feinstein–it’s her paper after all–on one side of a “she said, he said” dispute. Here are some examples to illustrate:

Michael V. Hayden: If you visited this space yesterday you’ll have read that General Hayden, a former CIA director among other things, is not my favorite exemplar of truthfulness. One thing the Senate report makes much of is CIA’s misleading of Congress. In an appendix the torture report provides more than two dozen examples of CIA deceptions, and traces from the agency’s own documents and records just why Langley’s claims were phony. Every one of the CIA’s deceptive comments involves General Hayden, most of them from the omnibus briefing the CIA finally furnished to Congress when the program was being shelved. My favorite–Hayden had told Congress there were 97 CIA detainees (the intelligence committee has established there were 116, though a few were yet to be captured). In January 2009 a CIA officer established there were at least thirteen “new finds,” making the latest number 112. Hayden ordered the officer to keep the number reported at 98, picking “whatever date I needed to make that happen.” The CIA response paper disagrees with the conclusion that the agency impeded congressional oversight–but it admits that “a few aspects” of Hayden’s testimony were in error and that it could have done a better job of preparing the director for his appearance before Congress. Whatever else happens, you’ve been warned. Do not believe Michael Hayden!

Jose Rodriguez: This former manager of the torture program has been running around hollering from every rooftop that the torture was legal. Let’s put aside the whole debate over the Justice Department memoranda, though, and take this one from strictly inside the CIA. Teams at the first black prison begin torturing their subject, and they report to headquarters that they can’t keep it up, they have moral qualms, there are legal issues. Rodriguez shoots back a cable on August 12, 2002, instructing the base chief and field officers to “refrain” from using “speculative language as to the legality of given activities.” Mr. Hayden–backed by CIA lawyer John Rizzo, by the way– represented to Congress that any CIA officer observing a torture session had not only the ability to object to a “given activity,” but a positive duty to stop it at any point. Needless to say, the Senate report gives examples like this one, where field officers objected and were told in so many words to shut up.

Responsiveness to Oversight: The CIA Inspector General made his own inquiry into the torture program, which I have referenced in this space before. The reaction of CIA’s top operations officer–Jose Rodriguez’s predecessor in that post–when the IG raised questions of legality, organization, and effectiveness of the torture–was to object that the IG report should have concluded that torture is effective.

Bin Laden’s Messenger: In a classic instance of “she said, he said,” the Senate investigators and the CIA disagree on the role of torture in bringing down Osama bin Laden. You’re sure to hear more about this since it goes to the debate ignited by the movie Zero Dark Thirty. You’ll recall that, at that time, there were a flurry of statements pro and con about whether torture had been necessary in uncovering the true role of the individual who served as Bin Laden’s go between, tracking whom led to the terrorist hideout. Members of the Senate intelligence committee issued statements that, unlike what was implied by the movie, torture had not been necessary. The CIA itself put out a statement in that vein, though there were opposing comments too. Here the Senate investigators lay out in enormous detail that CIA had data identifying the messenger from prisoners who were never tortured, or spoke before they were tortured, and focusing on the NSA intercepts and foreign liaison data nailing down the ID. In this case the CIA response paper insists that some information came from a prisoner after torture that was critical to the ID. As I say, I bet there will be more about this–and it is a place where the actual Senate report, not this thinned-out executive summary, could be crucial to a proper understanding of the matter. Stay tuned.