Category Archives: Intelligence

Social Media Attacks on Trump Could Put America’s Security at Risk

The National Interest

August 24, 2018

Retired Adm. Bill McRaven, who became a household name after special operators under his command killed Osama bin Laden, is once again in the spotlight. In a terse August 16 op-ed for the Washington Post, he castigated President Donald Trump for revoking the security clearance of former CIA Director John Brennan the previous day in a fit of partisan pique after repeated criticisms of his policies.

Later that evening, thirteen other former senior national-security figures from both political parties signed an open letter stating their opinion that “the president’s action regarding John Brennan and the threats of similar action against other former officials has nothing to do with who should and should not hold security clearances—and everything to do with an attempt to stifle free speech.” They added, “this action is quite clearly a signal to other former and current officials. As individuals who have cherished and helped preserve the right of Americans to free speech—even when that right has been used to criticize us—that signal is inappropriate and deeply regrettable. Decisions on security clearances should be based on national-security concerns and not political views.” Other open letters followed, with some 175 formers signing.

It is too early to know whether these statements will have any impact on the national debate. Thus far, opinions on Trump have been decidedly inelastic, seemingly impervious to evidence. To the extent that McRaven and the others change minds, however, it will come not only because of their impressive contributions in service to the nation but because they have kept their powder dry, weighing in only on egregious violations of the norms of our Constitutional system, and are not seen as partisan actors.

Sadly, this has not been the case with Brennan himself. While I fully concur that Trump’s revocation of his security clearance is outrageous and sets a dangerous precedent, even many of his defenders have distanced themselves from his actions since leaving government service.

He retired from his post as CIA director on the day Trump took office. Within months, he became a famous Twitter troll, expertly leveraging his reputation and the social media platform to tweak Trump while drawing attention to himself. On his first day of tweeting, he opined, “Trump Admin threat to retaliate against nations that exercise sovereign right in UN to oppose US position on Jerusalem is beyond outrageous. Shows @realDonaldTrump expects blind loyalty and subservience from everyone—qualities usually found in narcissistic, vengeful autocrats.” While I concur in that opinion, it’s simply that: a view on a matter of foreign affairs outside the scope of Brennan’s expertise as an intelligence professional and some snide armchair psychiatry.

He’s issued forty-nine tweets since, the lion’s share of which have been aimed at the president. Almost none of them had any but an indirect bearing on the intelligence community or the national security of the country. He’s weighed in against Trump policies ranging from immigration to trade to veterans’ affairs to alliance policy to the Iran deal to gun control.

Mostly, though, he’s attacked

Trump’s character. Brennan told us that Trump “continues to demonstrate daily that he is a deeply flawed person.” He frequently retweeted Trump with personal messages such as “your self adoration is disgraceful,” “your unprincipled and unethical behavior as well as your incompetence are seriously damaging our Nation,” “You are to governance & politics what Bernie Madoff was to the stock market & investment advice,” “History inevitably will regard Trump as one of the most disastrous figures of the 21st century,” “When the full extent of your venality, moral turpitude, and political corruption becomes known, you will take your rightful place as a disgraced demagogue in the dustbin of history,” and “It’s astounding how often you fail to live up to minimum standards of decency, civility, & probity. Seems like you will never understand what it means to be president, nor what it takes to be a good, decent, & honest person.”

Most famously, perhaps, he declared, “Your kakistocracy is collapsing after its lamentable journey” and “Donald Trump’s press conference performance in Helsinki rises to & exceeds the threshold of ‘high crimes & misdemeanors.’ It was nothing short of treasonous. Not only were Trump’s comments imbecilic, he is wholly in the pocket of Putin.” And, in a complete lack of self-awareness, he stated, “It never ceases to amaze me how successful you have been making yourself so small, petty, and banal with your tweets.”

My complaint with Brennan isn’t with his contempt for Trump or his policy views. I was a Never Trump guy from the moment he came down the golden escalator, long before there was an open letter or a hashtag. With a quibble here and there, I agree with Brennan on just about all these issues. Nor am I too highfalutin for Twitter trolling. I enjoy immensely, for example, Dan Drezner’s toddler-in-chief thread, 432 examples strong as of this writing. But, because of who he is, the volume and tone of Brennan’s commentary is inappropriate.

Drezner is a serious scholar, a tenured full professor at a top-tier public policy school with numerous academic press books to his name. That’s not incompatible with nearly two decades of being a wiseass on blogs and Twitter because he’s a one-man brand. Brennan, by contrast, continues to represent the CIA and intelligence community and is making their job harder.

Brennan’s caustic and frequently juvenile attacks on Trump are simply beneath the dignity of the office he so recently held. People like Brennan, McRaven, and the thirteen signatories of the open letter linked in the introduction continue to serve as elder statesmen and owe it to the nation to be prudent in their public commentary.

Since retiring from the Navy, the only time we’ve heard from McRaven was when he was counseling young Americans to make their beds first thing every morning. His speaking out so forcefully on Brennan’s security clearance is powerful precisely because he’s stayed above the fray until now.

Beyond issues of propriety, Brennan’s half-cocked tweets are harmful in that they contribute to the absurd notion that there’s a Deep State out to get Trump. The intelligence community writ large and the CIA in particular are seen by many Trump supporters as particularly suspect, in that they’ve been insistent that Russia attempted to influence the 2016 election.

While it’s likely true that the hard-core Trump fans are going to believe that no matter what, Brennan makes it easy for Trump and his allies to cast the CIA as partisan. While it’s obvious to me that he’s intending to speak only for himself, the general public will naturally see him as the spokesman for CIA officers who are unable to voice their opinions because of the nature of their oath.

General Michael V. Hayden, himself a former CIA Director, and James Clapper, the former Director of National Intelligence, who were among the thirteen signatories of the open letter defending Brennan. They, too, have been an outspoken critic of Trump. But they have mostly confined their public comments on the President to intelligence matters, including Hayden’s March 2017 New York Times op-ed “Donald Trump Is Undermining Intelligence Gathering” and Clapper’s book and frequent commentary on the Russian operations against the U.S. electoral system. While this distinction hasn’t stopped the president from lumping them in with Brennan, their remaining in their professional lane makes their commentary decidedly less political. That Hayden last served under President George W. Bush and has been retired almost a decade also makes it much less likely that he’s seen as speaking for the agency.

Given that McRaven, Hayden and David Petraeus (another signatory to the aforementioned letter, signing in his capacity as a former CIA Director) are retired flag or general officers, it’s worth a word about civil-military relations. While it’s harmful, for reasons that I’ve laid out, for former civilian intelligence officials like Brennan and Clapper to become part of the political fray, we’ve long held military officers to a different standard. Soldiers, after all, have guns and tanks. The loyalty of those in uniform to lawful orders from civilian policymakers, and especially the commander-in-chief, must be sacrosanct.

While many fiercely argue that, once retired, officers become mere civilians, entitled to unfettered free-speech rights like the rest of us, many of us disagree. As I argued in a commentary two years ago this month, it undermines the public’s confidence in the military as a profession when retired officers, especially those of high rank and recent service, become mired in partisan politics.

Where precisely one draws the line is unclear, but I’ve suggested, as a starting point, that “the distinction that holds for active duty officers and, to a lesser extent, civilian employees of the Defense Department between partisan politicking and issue advocacy.” It’s clearly wildly inappropriate for retired generals and admirals to endorse or oppose the re-election of officials they’ve recently served or worked alongside, as Bill Crowe did in 1992. It’s murkier but still highly frowned upon to endorse candidates for partisan office, like John Allen and Mike Flynn did in 2016.

It’s not only permissible but “likely valuable for retired officers to weigh in on public debates on controversial issues, like gender integration or proposed military action, where it would be inappropriate or difficult for serving generals to weigh in where their civilian masters have spoken.” Certainly, things like the propriety of revocation of security clearances for reasons unrelated to trustworthiness or the integrity of the Russia investigation fall within that ambit.

Additionally, I concur with RAND scholar and Bombshell co-host Radha Iyengar Plumb that McRaven and the signers of the open letter spoke out in “reaction to abuse of political power in a national security context” and that this is mere “defending institutional norms” vice partisan politics. While taking on a sitting president is inherently political, as nonpracticing professionals their oath to defend the Constitution against all enemies—foreign and domestic—remains in force.

Original article 

Clinton-Cartwright Comparisons Don’t Hold Up

James Joyner and Butch Bracknell

War on The Rocks

October 27, 2016

In the third and, thankfully, final presidential debate of the 2016 cycle, Republican nominee Donald Trump doubled down on his contention that his Democratic opponent, Hillary Clinton, “should never have been allowed to run for the presidency based on what she did with e-mails and so many other things.” He had some new ammunition: a former Vice Chairman of the Joint Chiefs of Staff, retired Marine General James “Hoss” Cartwright, had just been criminally charged in relation to leaking classified information. While there are surface similarities, however, the cases are quite different.

Trump charged,

We have a great general, four-star general, today you read it in all the papers going to potentially serve five years in jail for lying to the FBI, one lie. She’s lied hundreds of times to the people, to Congress, and to the FBI. He’s going to probably go to jail. This is a four-star general, and she gets away with it and she can run for the presidency of the United States?

Josh Rogin of The Washington Post took a similar position in an article headlined “General Cartwright is paying the price for Hillary Clinton’s sins.” He contends, “The FBI’s handling of the case stands in stark contrast to its treatment of Hillary Clinton and retired General David Petraeus — and it reeks of political considerations.”

He cites Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, who argues, “There is a lack of proportion just based on the facts that one figure, Cartwright, is getting severely punished and others so far have escaped the process,” adding, “He is being singled out for prosecution and public humiliation. It’s an implicit rebuttal to those who argued that other senior officials such as Clinton or Petraeus got off scott free or got too light of a sentence.”

Cartwright’s sentencing reportedly will not take place until January 17, making a full comparison difficult. Still, the cases are sufficiently different to make Trump and Aftergood wrong on the merits.

Trump’s comparison between Clinton and Cartwright is the easiest to dismiss. While the FBI found that Clinton had repeatedly been “extremely careless” in her handling of “very sensitive, highly classified information,” there was no evidence — indeed, never even the suggestion — that she intentionally shared classified information with any individual not authorized to receive it. Her recklessness could well have compromised national secrets. Given the ubiquity of hacking, it might well have. But there is no evidence to support a criminal prosecution, as explained in depth by FBI Director James Comey and others.  (Now, conduct that doesn’t clear the bar for criminal charging may be deemed by voters to be disqualifying for President of the United States. But Clinton is running against Trump, not Cartwright.)

More importantly, despite Trump’s assertions to the contrary, there is no evidence nor, again, was there any credible assertion, that Clinton lied to the FBI in their investigation of the matter. That, after all, is what Cartwright was ultimately charged with.

As Lawfare’s Ben Wittes noted on a recent episode of the Rational Security podcast, lying to federal investigators is the surest way to get charged with a crime: “There is nothing in this world — not child porn, not terrorism, nothing — that the FBI is likely to insist you be indicted for than lying to the FBI.”  He argues this is not merely self-serving: “They can’t do their job if people don’t engage in investigations in a responsible or reasonable fashion.”

Beyond that, it seems obvious that charging someone for false statements to investigators is a convenient way to extract some punishment while avoiding the proof problems that may accompany the underlying conduct. By merely charging false statements to investigators, prosecutors simplify their case and avoid the need to declassify underlying evidence or to hold the court in a closed, secure session.

Indeed, Wittes argues, in the context of the handling of classified information, those questioned by the FBI would be best advised to be as forthcoming as possible. Not only will those suspected of dishonesty be ruthlessly pursued “for years” if necessary, but people are essentially never charged merely for the mishandling of information. When FBI Director Jim Comey explained that “no reasonable prosecutor” would have brought charges against Clinton, he noted:

All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice.

He declared, “We do not see those things here.”

The better comparison, then, is Gen. David Petraeus, whose mishandling of classified information was compounded by lying to investigators. While the Justice Department worked very hard to build a felony case against him, he was ultimately allowed to plead guilty to misdemeanor charges and pay a fine.

His case centered around handing over his personal journals, which contained extensive classified information, over to his mistress Paula Broadwell to aid in writing her hagiography of him. Included in these books were “code words for secret intelligence programs, the identities of covert officers, and information about war strategy and deliberative discussions with the National Security Council.” The Department of Justice contended that the information, if disclosed, could have caused “exceptionally grave damage” to the national security.

The disclosure was somewhat mitigated by the fact that Broadwell, while having no official “need to know” and thus ineligible to receive the materials in question (“lack of access”), was an Army Reserve military intelligence officer with a security clearance, and thus highly trained to use discretion in the handling of classified materials. Additionally, Petraeus retained and used the right to vet the content of the book in detail before it was published. In the end, no classified material was used in the published book, and there is no evidence of foreign disclosure of the research materials.

As then-Attorney General Eric Holder observed, “There were some unique things that existed in that case that would have made the prosecution at the felony level and a conviction at the felony level very, very, very problematic.” Among these was a view by some in the Department of Justice that Broadwell was, technically speaking, a journalist and therefore essentially immune from prosecution under the Espionage Act for her own part in the crime.

Cartwright, meanwhile, talked to journalists about one of the government’s most closely guarded and highly compartmentalized secrets, the “Olympic Games” attack on the Iranian nuclear program using the Stuxnet virus. While Cartwright’s role in the leaks was murky, he noted he was not the original, primary leaker and was merely confirming information the journalists already had, and implied he was acting at the behest of the White House. But then why lie to investigators?

Again, we won’t be able to truly compare the treatment of the two generals until Cartwright’s sentencing. Among the factors — and likely the main factor — in Petraeus’ deal was his status as a public hero. It would have been very awkward politically to strip someone of his stature of his pension and prestige over an incident that most members of the public would find minor. We presume that Cartwright’s presentencing report will similarly speak in glowing terms about his four decades of exemplary service and would be surprised if he serves any jail time. His major penalty will be largely collateral to the offense — a minor loss of his Washington credibility and security clearance, at least for a few years, and an inability to work on classified matters for industry or think tanks, as retired generals often do. Unless a retroactive retirement grade review is ordered (unlikely in light of the Petraeus precedent), Cartwright’s pension will remain intact, and his professional prospects will either recover soon enough or not be appreciably damaged.

The more scandalous comparison, arguably, isn’t between Clinton, Cartwright, and Petraeus but between very senior officials like them and the mere rank and file. As The Daily Beast’s Shane Harris points out,  “The Obama administration has prosecuted more cases against government and military personnel for leaking than all other administrations combined.”

The most obvious are the very-high-profile cases of Chelsea (formerly Bradley) Manning and Edward Snowden. They are sufficiently complex, unique, and politically charged that we’ll leave them aside for this discussion. The cases of intelligence community civil servant Thomas Drake and Marine Reserve Major Jason Brezler spring to mind as more typical cases.

Faced with misgivings about intelligence community spending and overreach into citizen privacy, Drake made a series of reports to various oversight entities, including the Department of Defense Inspector General. In alleged retribution for Drake’s later disclosures to The Baltimore Sun, the Justice Department brought a case against him which later fell apart into yet another misdemeanor plea deal — but not before Drake’s successful career and reputation were ruined.

Military servicemembers facing similar discipline and loss of a security clearance can, and often are, separated from service by virtue of their inability to perform their primary duties without access to classified information. Brezler has been the subject of administrative separation proceedings seeking to throw him out of the service over relatively minor and self-reported classified information disclosures and retentions. Brezler sent classified information over unclassified networks for the purpose of alerting colleagues in Afghanistan of an imminent danger posed by an Afghan security force member. After self-reporting, an investigation revealed Brezler unlawfully retained other classified information, possibly as research information to write a memoir. Unable to prosecute him by court-martial, the Marine Corps sought to fire him, which would spell the end of his service, the loss of any eventual pension, and loss of his security clearance for years.

For Drake and Brezler, once accused of improper handling and retention of classified materials, the hammer of justice has been somewhat severe.

The disparity between the treatment of senior leadership and those for whom they are supposed to set the example is uncomfortable. Partly, it’s a function of political connections; generals and cabinet officers are more likely than privates and ordinary bureaucrats to have friends in high places. Partly, it’s the fact that those who have risen to high rank typically have several decades of “wasta” to balance against poor decisions. This apparent say-do gap, while unfortunate, is probably inevitable.

Regardless, Clinton is getting no special treatment by the standards of her high-powered peers. Like Petraeus and Cartwright, she failed to safeguard the nation’s secrets to the appropriate standard. None of the three were charged for these failures. Unlike them, she did not get caught lying to the Justice Department. Thus, once again, the old Washington truism has borne out: It’s not the crime, it’s the cover-up.

Original article

Torture Doesn’t Work: The CIA Torture Report’s Long Shadow

The National Interest

December 11, 2014

Despite more than a decade of reports that the U.S. government had tortured high-level terrorist suspects, including a frank, if detached, admission from President Obama that the nation had “tortured some folks,” Tuesday’s release of the Senate study of the CIA’s detention and interrogation program was chilling. We learned that some interrogation techniques were “brutal and far worse than the CIA represented to policymakers and others.” And we found out that the CIA willfully and routinely misled, if not outright lied to, everyone from their own inspector general to the oversight committees of Congress and even the president of the United States.

Torture Doesn’t Work

Much of the first day discussion of the report centered on the finding that “enhanced interrogation techniques [were] not an effective means of acquiring intelligence or gaining cooperation from detainees.” Despite claims to the contrary from the CIA, Vice President Cheney and others, this is not new news. Decades of experience by police, military and intelligence interrogators around the world had made it clear long before the 9/11 attacks that the most effective means of extracting useful information from suspects is to win their trust. While physical and psychological torture will certainly get people to talk, the incentive created is to say whatever it takes to get relief.

The report demonstrates that this lesson was learned yet again. Almost all of the useful intelligence merely corroborated what was already known from legitimate interrogations and much of the intelligence that was gathered was simply wrong. Indeed, some of the most brutal torture led to the worst intelligence, including information that led U.S. forces to target innocents. And almost all of the touted terrorist plots that were allegedly “disrupted” on the basis of evidence obtained from torture were fantastical at best.

The Dilemma

That said, I’m troubled by the line of thinking promulgated by my fellow Wikistrat analyst, Daniel R. DePetris, at TNI:

. . . I believe we can all agree on one thing: the men and women of the Central Intelligence Agency immediately after September 11 were—and remain—in an unfathomably difficult position. The officers, analysts, scientists, and managers of the agency are expected to perform their jobs with the utmost perfection in incredibly rigid time constraints, and are expected to do so without making a mistake that could potentially hurt the strategic position of the United States or result in the deaths of Americans at home or abroad. And these men and women are mandated to do this every single day they trek to agency headquarters or start their workday in the one of hundreds of CIA stations located in dangerously hostile areas.

On the one hand, I wholeheartedly concur that our intelligence professionals are in “an unfathomably difficult position” and are asked to do an essentially impossible job with potentially deadly consequences. On the other, this is the same mindset that lets police get away with killing unarmed civilians with impunity. Those performing dangerous jobs protecting the public deserve our understanding; they shouldn’t be above our laws or immune from scrutiny.

Like Senator Dianne Feinstein, the outgoing chair of the committee who courageously released the report, despite bullying from the intelligence community, I “can understand the CIA’s impulse to consider the use of every tool to gather intelligence and remove terrorists from the battlefield.” But, as she rightly notes, “such pressure, fear, and expectation of future terrorist plots do not justify, temper, or excuse improper actions taken by individuals or organizations in the name of national security.”

Oddly, that notion was simply common sense not all that long ago. As a freshman cadet thirty years ago last summer, the laws of war were drummed into me even before I studied battlefield tactics or the capabilities of weapons systems. That military professionals had a sacred duty to protect noncombatants, treat surrendering enemy soldiers humanely, and otherwise uphold our laws and our values, even at increased risk to our own lives and those of the soldiers under our command, was simply a given.

Some have argued that 9/11 and the ensuing war on terror is different, because our current enemy doesn’t respect our laws and our values. But we’ve long fought enemies, including the Vietnamese and Japanese in living memory, who flouted the laws of war, especially against an enemy they considered racially or culturally inferior. Our standard remained unwavering. We followed our values, because they were our values, not because we expected reciprocity. But, as a bonus, we believed our enemies were much more likely to willingly surrender, rather than fight to the last man if they expected humane treatment.

What Now?

Nonetheless, while I frequently and publicly opposed the use of waterboarding, rendition and all the rest, even in the earliest days after 9/11, and even while strongly supporting the Bush administration, I fully understood why the people with the awesome responsibilities of safeguarding the nation in those days might have thought torture was “worth it.” Thus, I’m left in the untenable position of simultaneously believing that the Bush administration acted illegally in many cases and yet not thinking that Bush, Cheney, Yoo and company ought go to jail for these acts. Indeed, I share this odd position with the current administration.

The cynical explanation is that Obama is president now and he doesn’t want anyone second-guessing him down the road. But it’s also something much more: sitting in the big chair gives him an appreciation of how hard it is to fill. Indeed, more than a decade after 9/11, Obama himself is still making compromises with the law, including the Constitution, which he swore to uphold, in the name of safeguarding the Republic.

The nature of terrorism, like that of crime, frustrates the public and those charged with protecting its safety. In both cases, there is substantial pressure to “bend the rules” in order to safeguard the citizenry. The promulgation of extraconstitutional means for targeting gangsters, RICO as an obvious example, and the advocacy of torture to extract intelligence from terrorists differ only in degree.

Despite taking substantial risk in releasing the report, even Feinstein isn’t calling for much more than learning from the past. Aside from imploring her colleagues to formalize Bush and Obama executive orders limiting the worst of the abuses into the law in her introduction, the committee report offers no recommendations. Nobody is likely going to be held accountable in a court of law for torture under the circumstances.

The truth of the matter is that, as with drone warfare and other controversial tactics, the general public is much less concerned about torture than we pointy-headed intellectuals. Again, we’ve known the broad details about waterboarding, extraordinary rendition and the like for over a decade, and yet:

 - A 2005 AP-Ipsos poll found that 61 percent of Americans “agreed torture is justified at least on rare occasions.”

- An April 2009 CBS-NYT poll found 62 percent opposed to Congress holding hearings on the Bush administration’s treatment of detainees. Indeed, the same poll found that, while 71 percent believed that waterboarding is torture, a 46 percent plurality thought it was justified.

 - A June 2009 AP-GfK poll found that support for torture had actually increased since their 2005 survey, with 52 percent saying “torture can be at least sometimes justified to obtain information about terrorist activities from suspects,” up from 39 percent four years earlier.

Perhaps the consolidation of information into a single report, the increased perspective brought on by distance from the 9/11 attacks, or details about the creative use of hummus will change the public’s mind. But I rather doubt it.

If nothing else, CIA officials who lied to everyone from their own IG to the Office of the Director of National Intelligence to the FBI to Congress and the White House should be called on the carpet. There is, of course, a perversity in going after bureaucratic miscreants for lying about torture while letting the torturers themselves and leaders at the highest level who authorized torture to go free. But there’s simply no appetite for going after elected leaders who were overzealous in fighting terrorism.

And as outrageous—and, again, illegal under both U.S. and international law—as the acts of torture against terrorist suspects in our name were, they were at least relatively few in number and long-since discontinued. The notion of a rogue agency taking these actions of its own volition, willfully evading the myriad checks, balances and safeguards built into the system is ultimately even more destructive to our values.

Original article

Ahmed Abu Khattala and the Miranda-Rights Question

Butch Bracknell and James Joyner

The National Interest
July 7, 2014

The September 11, 2012 attacks on U.S. diplomatic facilities in Benghazi, Libya were, according to U.S. law enforcement and intelligence sources, designed and led by Ahmed Abu Khattala, a Libyan jihadist. Recently, Khattala was captured by U.S. special-operations forces and transported to a U.S. Navy ship in the Mediterranean for debriefing, presumably by intelligence community (CIA and FBI) interrogators. Khattala was then transferred to FBI custody from military detention, even though he remained on the U.S. Navy ship for transit. He was flown off the ship and transported to the United States to answer a June 26, 2014 federal criminal indictment, alleging a single count of conspiracy to provide material support to terrorism. He remains in pretrial criminal detention after his initial appearance before a U.S. magistrate in the U.S. District Court for the District of Columbia on June 28.

Given the intensity of the political squabbling over how the Obama administration handled the Benghazi incident, there has been surprisingly little attention paid to Khattala’s arrest and detention. There has been unsurprising, yet irresponsible, insistence from some quarters that he be sent to Guantanamo Bay for extended detention as an unlawful enemy belligerent. The usual suspects have expressed concern that Khattala was turned over to law enforcement too quickly, allowing insufficient time to extract all the valuable intelligence he may have had to offer. Absent compelling evidence otherwise, we’re prepared to trust the judgment of intelligence professionals over grandstanding politicians on that score.

Our concern is the opposite one: that the intelligence interrogation may have violated Khattala’s due process rights, thus tainting the upcoming criminal trial. It is a longstanding principle of American law that the government may not use evidence gathered in violation of the United States Constitution against defendants in criminal cases. The Exclusionary Rule denies authorities the ability to use “evidence gained from an unreasonable search or seizure in violation of the Fourth Amendment . . . improperly elicited self-incriminatory statements gathered in violation of the Fifth Amendment, [or] evidence gained in situations where the government violated defendants’ Sixth Amendment Right to Counsel.”

Nearly a century ago, the Supreme Court extended this principle with the Fruit of the Poisonous Tree doctrine, which renders evidence gathered as a result of bad conduct inadmissible in court. Since even if the direct evidence from an unlawful search or involuntary confession were excluded, investigators informed by that unlawfully obtained information would have a much easier time building a case, that evidence is usually considered tainted and inadmissible.

Yet Khattala’s handling follows a recent pattern of similar detentions. Ahmed Abdulkadir Warsame of Somalia was captured in April 2011 and interrogated shipboard for about two months before being offered a rights advisement. He later pled guilty in federal court and is awaiting sentencing. Sulaiman Abu Ghaith, a relative of Osama bin Laden, was detained in Jordan in 2013 and handed over to the FBI for transit to the United States, where he was convicted by a federal jury. Ghaith may have been interrogated by FBI and CIA personnel while in Turkish custody, prior to his arrest in Jordan and his subsequent rights advisement on the flight to the United States for judicial proceedings. In both cases, Miranda warnings were issued only after the intelligence community had conducted tactical interrogations designed to glean time-sensitive, perishable information that could be processed and analyzed for intelligence value.

Even those passingly familiar with American cop shows know that Mirandawarning rights attach the moment that law enforcement agents intend to question a suspect in their custody, post-arrest. Whether it was Lennie with a witty quip just before delivering Miranda warnings as he lowered a perp’s head into a squad car on Law and Order, or Andy Sipowicz growling rights advisements with disgust through clenched teeth as he unlawfully pummels a suspect after a collar, everyone is familiar with “You have the right to remain silent . . .” The rights advisement, which became standard law-enforcement practice after the U.S. Supreme Court issued Miranda in 1965, is intended to preserve suspects’ statements for admission into court by removing the taint of coerced confessions and infringements on the right against self-incrimination. In theory, after the rights advisement is delivered, a criminal suspect is on notice of his rights, and any statement he gives thereafter, in the absence of evidence of coercion or other interference with procedural rights, can be admitted in court as an admission. The right is so well established that it is etched permanently into American popular culture.

So why do these rights not attach the moment a terrorism suspect is detained, when he is ultimately haled before a U.S. court, the same as any other extraterritorial offender—like a bank fraud indictee arrested in the United Kingdom and extradited for trial, or a drug lord captured in Mexico and transported to the United States for trial?

Historically, they have. The FBI treated the defendants in the 1993 World Trade Center bombing case as pure criminal defendants. The Bush administration came somewhat close to the current approach in 2002 when it classified Jose Padilla—a U.S. citizen—as an enemy combatant under the Authorization to Use Military Force, claiming he was “closely associated with Al Qaeda” and had engaged in “war-like acts.” Rather than enjoying the full range of constitutional protections, he was questioned by intelligence community interrogators without Miranda warnings, and held in military brigs—rather than transported to Guantanamo. Eventually, he was “shifted” over to the criminal justice system where he was convicted of conspiracy and sentenced to seventeen years confinement at Supermax in Colorado. It’s likely, but not documented, that they used “clean teams” to question him and avoid tainting the evidence.

The construct employed by this administration is the erection of an imaginary, impermeable barrier between intelligence interrogation and law enforcement questioning for prosecution. This approach takes advantage of legal authority in the law of armed conflict to conduct post-capture tactical questioning and interrogation. Once the intelligence value of a detainee is thought to be mostly or completely exhausted, custody is transferred from the High Value Detainee interrogation team conducting law-of-armed-conflict interrogation to a criminal interrogation team, who then advise the detainee of his rights and attempt to question him. Some detainees will continue to talk, and some will take heed of the rights advisement. By design, none of the information in the “Stage 1” intelligence interrogation is used in court, nor is it shared with the law-enforcement team that conducts the prosecutorial interrogation. So long as the government can establish the sanctity and integrity of the wall separating the two processes, so the intelligence interrogation (with no Miranda warnings) does not taint the Mirandized interrogation process, which can yield confessions and statements against interest, there is no Miranda/self-incrimination issue. The statements taken post–Miranda warning are admissible as evidence of guilt. No federal court has yet held otherwise.

On principle, should American courts indulge the artifice of the “two stage” interrogation? Has Miranda matured as a civil right in the American legal system that the courts should look very dimly at government efforts to limit or marginalize this important personal civil right by artificially dividing its interrogations by the purpose for which each interrogation is conducted? What about the subjective expectations of the individual being questioned? Is it not reasonable for him either not to understand the Miranda warnings at all, or to miss their importance in dividing the interrogations into separate stages? Might the interrogee assume that since he was giving statements at Stage 1 (the intelligence interrogation), that he has no reason not to continue talking at Stage 2 (the criminal interrogation)? And if that is true, does that not chip away at the sanctity of the civil right represented by Miranda that Americans enjoy? By employing such sleight of hand for captured alleged terrorists’ interrogations, are we not undermining our own values represented by the protections engrafted onto our criminal justice system?

At issue also, of course, is the integrity of the barrier between the intelligence interrogation—a “lawful” interrogation under the law of war, but an “unlawful” interrogation for Miranda purposes—and the law enforcement interrogation. Is it not foreseeable that an overzealous intelligence agent, personally and emotionally offended by the actions of an alleged terrorist, might not tip the scales of the law-enforcement interrogators by tipping them off as to specific areas of inquiry, or specific facts that might be used by a skillful interrogator to gauge whether the defendant is being truthful in his responses to the criminal interrogation?

Existing judicial precedents provide some guidance. Neither the Exclusionary Rule nor its Fruit of the Poisonous Tree corollary are absolute. Among the situations in which evidence will not be excluded are if it was discovered from a source independent of the illegal activity or if there is attenuation between the illegal activity and the discovery of the evidence. The Obama administration would doubtless argue that the wall between the two stages of interrogation meets one or more of these exceptions. But, given the vagaries of highly classified proceedings, it would be next to impossible for Khattala’s attorneys to discover, much less prove, illicit collaboration between the intelligence and prosecution teams.

We presume that the intelligence community and FBI are, at least at the highest levels, being exceedingly scrupulous about the line, because the damage to this technique if they are caught violating the rules could be enormous. The more likely danger is when it is executed at the operator level; nobody planned on Abu Ghraib, either. But, even if all government actors maintain the highest level of fidelity to the law in practice, the opaqueness of the practice will always leave doubt.

Ultimately, these cases take us back to a longstanding debate in terrorist cases: the degree to which they are simply crimes to be adjudicated through existing law-enforcement practices or acts of war to be handled through military means and under the law of war. With Khattala, Warsame and Ghaith, the administration is trying to have it both ways. It is a clever theory that may prove to be untenable—legally and perhaps morally.

Original article

Clapper’s Bodyguard of Lies

The National Interest

August 20, 2013

Winston Churchill declared, “In war-time, truth is so precious that she should always be attended by a bodyguard of lies.” In the current environment, it’s difficult to know where the truth ends and the lies begin.

Last week the Washington Post reported, “The National Security Agency has broken privacy rules or overstepped its legal authority thousands of times each year since Congress granted the agency broad new powers in 2008.” But that report shed more heat than light on a contentious subject.

More than two months after Edward Snowden’s revelations, we still do not know the scope of the NSA’s surveillance programs. Quite probably, we never will. But the hue and cry over the NSA’s internal investigation finding all manner of violations of the law is misplaced. In fact, the uproar is strong evidence of an agency that takes its responsibilities to comply with the law seriously.

Benjamin Wittes, a senior fellow at Brookings and editor of its Lawfare blog, puts it quite succinctly:

[The report] should give the public great confidence both in NSA’s internal oversight mechanisms and in the executive and judicial oversight mechanisms outside the agency. They show no evidence of any intentional spying on Americans or abuse of civil liberties. They show a low rate of the sort of errors any complex system of technical collection will inevitably yield. They show robust compliance procedures on the part of the NSA. And they show an earnest, ongoing dialog with the FISA Court over the parameters of the agency’s legal authority and a commitment both to keeping the court informed of activities and to complying with its judgments on their legality.

While Wittes is “annoyed” by the hyped framing of this discussion in the media, he’s more frustrated by “the administration’s weedy and defensive response,” which has made the wildest claims seem plausible.

While we’re in full agreement on that score, it’s perhaps a bit unfair given the uneven playing field. Most of what the public knows about the matter, including this latest release, comes from selective, criminal leaks of classified data by an erstwhile defense contractor hiding out in Russia while claiming to be a whistleblower. Meanwhile, those who would defend the program either don’t know all that much about it or are limited in what they can say about it precisely because it’s classified.

Then there is Senator Ron Wyden, an Oregon Democrat who sits on the intelligence committee. He has been an outspoken critic of these programs in general and about misleading statements from intelligence community leaders in particular. In a speech at the Center for American Progress, he asked, “When did it become all right for government officials’ public statements and private statements to differ so fundamentally?” The question was apparently rhetorical: “The answer is that it is not all right, and it is indicative of a much larger culture of misinformation that goes beyond the congressional hearing room and into the public conversation writ large.”

While I share some of Wyden’s misgivings about the scope of the government’s collection of information on American citizens, and indeed the general weakening of the Bill of Rights in the fight against global terrorism, this charge strikes me as naive, if not silly. By its very nature, a culture of misinformation follows a culture of secrecy as night follows day. As Churchill understood, questions will come up and misinformation is necessary to divert people from stumbling on the truth.

Indeed, Wyden himself unwittingly demonstrated this recently. He was justifiably upset that Director of National Intelligence James Clapper told him that the NSA was “not wittingly” collecting data on millions of Americans when, in fact, it was and Clapper knew it. That the intelligence community defines “collect” in a different way than the dictionary doesn’t change the fact that Clapper was intentionally trying to hide the existence of the program.

Then again, Wyden should have known better than to ask that question in a public hearing. It would not only have been foolish but illegal for Clapper to acknowledge the existence of a highly sensitive and classified program in that setting. So, Clapper was put in a position where he had to either lie or give an answer that tacitly revealed classified information. (Truthfully denying one program and then giving an “I can neither confirm nor deny” response regarding another makes it rather clear that the second program exists.) Clapper tried to avoid either path by giving an answer that was too cute, seemingly denying the program existed while not quite doing so. That was foolish and he was later forced to apologize.

The bottom line here is that, while some members of Congress are entitled to know what our intelligence community is doing, “Congress” isn’t. Some information is shared only with the chairman and ranking member of the House and Senate intelligence committees. Some is shared with the committees in whole but only behind closed doors, in sessions where they’re sworn to secrecy. Very little information is shared in public hearings and, frankly, we probably shouldn’t put too much in what is.

Original article 

Leaders and Leakers

The National Interest

June 11, 2013

Glenn Greenwald, the civil-liberties columnist who broke the story about the National Security Agency’s massive collection of metadata on U.S. phone and Internet usage patterns, contends that, despite its being classified Top Secret, “There’s not a single revelation that we’ve provided to the world that even remotely jeopardizes national security.” Director of National Intelligence James Clapper begs to differ, saying they have done “huge, grave damage.”

The truth is that Greenwald does not have any way of knowing how much damage has been done. And Clapper, who denied the program even existed in testimony under oath to Congress, obviously believes he has higher duties than public candor. Indeed, while he vividly condemns “reckless disclosures of intelligence community measures used to keep Americans safe,” he also admits that “not all the inaccuracies can be corrected without further revealing classified information.”

While they’re almost existentially opposed to one another, Greenwald and Clapper are honorable men who passionately believe in their causes and love their country. Clapper has spent the last half century in his nation’s service, almost all of it in the intelligence business. He’s been in charge of the nation’s secrets and the men and women who collect and analyze them and is keenly aware of the practical consequences of their compromise. Greenwald, a constitutional lawyer by training, is leery of the national-security state and its penchant for secrecy, deeply troubled that far too much information is classified for the wrong reasons and that Americans’ civil liberties are traded too cheaply for minimal and even nonexistent gains in security. Neither is wrong.

Do I trust that Clapper is telling the truth, the whole truth, and nothing but the truth about the program and its harm? How can I? While his account of what’s happening—and not happening—strikes me as plausible, it remains highly classified. Not only did he do everything in his power to keep it secret from us, but he quite probably lied to Congress to do so. Yet, while I don’t like it one bit, lying about it may be his duty if that’s necessary to throw Al Qaeda and others who intend us harm off the scent.

Over many years, Greenwald and I have debated these issues, sometimes enthusiastically agreeing, sometimes passionately opposed, but always respectful. Unlike far too many public intellectuals, Greenwald has been utterly consistent in his positions regardless of which party holds the Oval Office. His bitter critique of the excesses of the Bush administration’s policies has continued unabated under President Obama.

I share many of Greenwald’s concerns about the war on terror in general and the NSA program in particular. Some of actions taken by the United States government in the name of protecting our safety, Greenwald and I agree, rather obviously violate the spirit of the Bill of Rights. And, as anyone who’s had reason to handle classified information—and I have—can attest, it’s way too easy to designate material secret and way too hard to make the information that shouldn’t be secret available to the public.

Yet, there is still reason to roundly and unequivocally condemn the treachery of Edward Snowden, the 29-year-old intelligence contractor who violated his oath to safeguard the classified information with which he was entrusted by leaking it to Greenwald. Just as there is to rebuke Bradley Manning, the then twenty-two-year-old Army private first class who passed troves of national-defense information to Wikileaks. Indeed, this issue is among the core disagreements I’ve had with Greenwald over the years. (Greenwald and I are in absolute agreement that much of the treatment to which Manning was subjected while awaiting trial was outrageous. But that’s a sad footnote to this particular debate.)

Should we fully trust Obama, Clapper, Secretary of Defense Chuck Hagel, CIA Director John Brennan and others in charge of deciding what secrets to keep from us? History tells us that we’d be fools to do so. Certainly, presidents, cabinet secretaries and intelligence officials have lied to us in the past.

At the same time, Obama has now twice been elected president. Clapper, Hagel, Brennan and others have been thoroughly vetted and approved by the Senate. They’ve spent years earning our trust and every action they take is under constant scrutiny.

Given a choice, I’d rather place my trust in those charged with safeguarding our nation’s secrets to do so honorably than to make every disgruntled Army private or low-level contractor a de facto national classification authority.

The president and his national-security team are atop a very long chain of command—actually, several chains of command—with layer after layer of seasoned professionals able to apply their mature judgment in making calls as to what should and shouldn’t be secret. Or, at the programmatic level, what should and shouldn’t be done.

Yes, they’re human beings—and human beings make mistakes and have agendas. But, while they’re undeniably intelligent and presumably well-intentioned, Snowden and Manning are human beings prone to mistakes and with agendas of their own. Why on earth would we trust them more than our elected representatives and national-security professionals?

Not only has Clapper been making decisions related to classified information almost as long as Snowden and Manning combined have lived on this planet, but he’s got a team of thousands to help him make those decisions. And he’s got not only the president but the chairmen and ranking members of the House and Senate intelligence committees looking over his shoulder.

None of this is to say that the current system is perfect. In an ideal world, Congress would be more aggressive in pushing back against the excesses of the executive and the judicial branches, and the Foreign Intelligence Surveillance Court would be a less of a rubber stamp. There’s too little resistance to intrusive programs if they’re done in the name of public safety or fighting terrorists.

But the answer isn’t to put those at the bottom of the chain of command in charge of deciding what remains secret. Those at the top should do the jobs with which they’ve been entrusted.

Original article

Intel Reform 2.0

Tech Central Station

August 27, 2004

Within hours of the 9/11 Commission’s issuance of its 516 page report, Senator John Kerry charged that, were he president, he would immediately enact its recommendations down to the dot over every “i” and the cross over every “t.” Rather than responding that a president, as opposed to an absentee senator, must demonstrate responsible judgment and sober reflection, President Bush instead took the bait and allowed himself to be forced into a hasty judgment. A mere ten days after the report hit the streets — and with the Democratic National Convention having sidelined him for a week — the president said he would enact parts of the Commission’s recommendations by executive order and send up legislation calling for a watered down version of some of their other recommendations.

Senator Chuck Hagel responded that a rush to judgment on such an important issue was folly:

“We will reform our intelligence community. The responsibilities of leadership require our action. But we must not rush haphazardly through what may be the most complicated and significant government reorganization since World War II.”

Hagel is right. The 9/11 Commission was a panel consisting almost entirely of people with no expertise in intelligence gathering or analysis. Their judgments may be quite solid, but they should not be accepted as Delphic. It is the job of presidents and legislators to make judgments on such weighty matters for themselves. Blue ribbon panels are sometimes useful, but they must not become mini governments. The idea that an unelected panel should have carte blanche over something so important as reforming our national security apparatus is absurd and, frankly, a bit frightening.

Some perspective is in order. The current system, which stood the nation in good stead for over half a century, was the product of slow deliberations that was done largely out of the heat of the public spotlight, let alone the closing days of a bitter presidential campaign. The National Security Act of 1947, which created the CIA, National Security Council, and what would become the Department of Defense, took years to craft and was based on input from numerous commission reports, congressional hearings, and presidential leadership.

That process began with then-Army Chief of Staff George C. Marshall’s November 1943 call for a unification of the armed services into a single cabinet department. This was sparked by frustrations over the lack of cooperation and information sharing between the War Department (which housed the Army and an all-but-independent Air Force) and the Navy Department (which included then as now the Marine Corps). The plan was quite controversial within the Joint Chiefs, especially with Admirals Ernest J. King and William D. Leahy. They finally agreed to create a committee, under retired Admiral James O. Richardson, to study the issues involved. Fearing that the report would be subverted by the Navy, the War Department produced its own study and set of recommendations under the supervision of Army Chief of Staff Joseph T. McNarney. Meanwhile, Congress regained interest in the issue, with a special concern for cost savings that might be generated from a consolidation of the services, and created a special committee under Rep. Clifton A. Woodrum.

The Richardson Committee, which had been formed at the demand of the Navy in hopes of avoiding unification, surprised everyone when it reported in April 1945 that, “excepting its senior naval member [Admiral Richardson],” it was “unanimously in favor of a single department system of organization of the armed forces of the United States.” It reached this conclusion after months of meetings with the senior military officers in Washington, as well as interviews with “the principal field commanders” in the European, Mediterranean, and Pacific theaters.

Fearing that a consolidated military would diminish the role of the Navy, David L. Walsh, Chairman of the Senate Naval Affairs Committee and Navy Secretary James Forrestal appointed Ferdinand Eberstadt, former chairman of the Army-Navy Munitions Board, to head another blue ribbon study with the purpose of finding a compromise solution. Not surprisingly, their three-volume report in September 1945 concluded that unification would not improve national security but would constitute “a dangerous experiment.”

The Eberstadt Report was not, however, simply a presentation of the Navy position; some of the conclusions presented went beyond what Forrestal would have preferred. It recommended the creation of a third military service, The Department of Air, which would consist only of the aviation assets then under the control of the War Department. It also recommended the continuation of the wartime JCS as a unity of command tool, the creation of a National Security Council and a National Security Resources Board to further ensure inter-service coordination, and a Central Intelligence Agency to continue the wartime practice of cooperation on intelligence issues. Finally, it argued for the creation of an organization to oversee the logistics functions of the various services. Because the Eberstadt Commission study was so detailed and because it broke from the previous Navy pattern of obstinate denial that there even were problems with interservice cooperation, it was well received.

The culmination of four years of commission reports, congressional debates, and interservice wrangling was the National Security Act of 1947. It followed many of the recommendations of the Eberstadt Report, creating a unified National Military Establishment with an independent Department of the Air Force, as well as a National Security Council and Central Intelligence Agency. The Military Establishment was headed by a Secretary of Defense who was a member of the Cabinet, but not the head of his own department. Each of the now three services was headed by a civilian Secretary who also enjoyed Cabinet status, with the inherent ability to go over the head of the Secretary of Defense.

In addition to streamlining the military, the Act aimed at improving coordination among all executive agencies involved in the security arena. A National Security Council (NSC) was created to streamline the flow of information from the several bureaucracies responsible for the many issues related to security. The NSC created a vehicle to bring together existing agencies in a formal setting. Its statutory members are the President, Vice President, Secretary of State, and Secretary of Defense with the Director of Central Intelligence and Chairman of the Joints Chiefs of Staff as statutory advisors. Other members vary based on the desires of the president and the existing security environment but the National Security Advisor and White House Chief of Staff are always included. Below the NSC itself are the Deputies Committee and Policy Coordinating Committees, both of which consist of more junior policy experts who do most of the detailed staff work. The usage and prestige of the NSC varies based on the preference of the president, with some presidents relying quite heavily on the NSC and others preferring to rely primarily on their Secretary of State.

The Central Intelligence Agency (CIA) was created by the Act as the first peacetime civilian intelligence-gathering agency in US history. It is independent of the cabinet and headed by the Director of Central Intelligence, who is both head of the CIA and as the coordinator for all the intelligence agencies in the US government. In this latter capacity, the DCI has authority over all the intelligence assets of the Defense Department, State Department, and several independent intelligence gathering agencies. Many analysts have noted that this power is often observed only in the breach, as intelligence agencies are even more loath to share information than other bureaucracies.

Some of the Act’s provisions had to be tinkered with almost immediately. The Secretary of Defense was virtually powerless and the National Military Establishment, rather than creating a unified military, became merely another layer of bureaucracy,  And instead of two service branches at the cabinet level, the new Air Force became a third. After negotiations at Key West, Florida and Newport, Rhode Island in 1948 failed to fix these problems, a 1949 amendment to the National Security Act finally stripped the service secretaries of their cabinet rank and made them subordinate to the Secretary under a new Department of Defense.

As we are sure to see with the intelligence reform process — however it turns out — changing the organizational chart will not be enough to create harmony among large bureaucracies with naturally competing interests. Even with a strong cabinet secretary in charge, the service branches have managed to this day to be quite powerful in defending their unique interests. Despite numerous congressional hearings, blue ribbon panels, executive orders, Reform Acts in 1953 and 1958, the Goldwater-Nichols Act of 1986, and several quadrennial reviews, some of the problems identified by George Marshall in 1943 remain with us until this day.

Original article