Senate Intelligence Committee Agrees To Declassify Key Points Of CIA Torture Report

from the good-news dept

While not entirely unexpected, it's good to see that the Senate Intelligence Committee has finally voted to declassify the key parts of the massive 6,300 page report on the CIA's torture program. As we've been discussing for months, this report, which cost $40 million and has been progressing for years, has been the subject of a pretty big fight from the CIA. It was expected that the Intelligence Committee would approve declassifying the executive summary -- which itself runs 480 pages -- along with "20 findings and conclusions" from the report. It seemed clear that the Democrats on the committee would support declassification (and President Obama has supported it as well), though it was unclear if Republicans would. Yesterday, we noted that Republican Senator Susan Collins announced her support for declassification, while also directly calling the CIA's program "torture," -- something that others on the committee have been afraid to do.

What's a bit surprising is that the vote wasn't even close: 11 to 3 in favor of declassifying the report, and even the highest ranking Republican, Saxby Chambliss voted in favor of declassification, though he did so under what appears to be a bit of a protest. His statement about the vote certainly sounds like sour grapes, rather than strong support:

"Today, I voted in favor of sending a portion of this majority report to the executive branch for declassification. Despite the report’s significant errors, omissions, and assumptions—as well as a lot of cherry-picking of the facts—I want the American people to be able to see it and judge for themselves. In addition, this study has been an expensive, partisan distraction that has hindered the committee’s ability to provide oversight of current national security issues, including NSA reforms, cybersecurity, Russia, Syria, and Afghanistan. I hope we can put this behind us and focus on the national security challenges at hand.

While I agree with some of the conclusions in this report, I take strong exception to the notion that the CIA’s detention and interrogation program did not provide intelligence that was helpful in disrupting terrorist attacks or tracking down Usama bin Ladin. This claim contradicts the factual record and is just flat wrong. Intelligence was gained from detainees in the program, both before and after the application of enhanced interrogation techniques, which played an important role in disrupting terrorist plots and aided our overall counterterrorism operations over the past decade."

Another Republican on the committee, Tom Coburn also called it torture, though he insisted that the CIA did it in "good faith" and voted "present" rather than in favor of declassification.

“I agree that some of the more extreme Enhanced Interrogation Techniques (EITs) could be considered torture, and that in the future this country should not rely on such techniques. Yet, at the time, they had legal sanction. Readers of the report will make their own judgments about how they were implemented. I believe that the CIA acted imperfectly, but in good faith and under great urgency to prevent an attack from a little understood enemy that had brought devastation to our shores."

Feinstein was willing to call it "a stain on our history that must never again be allowed to happen" but refused to call it torture.

Of course, the "fight" is not over yet. There will certainly be a fight over how the declassification is handled and the public won't see the report for many, many months. Senator Mark Udall, who has been a big critic of the intelligence community for a while, has asked that the CIA not handle the declassification itself, knowing that it will over-classify:

"Following today’s historic vote, the president faces what I believe should be a straightforward question. He can defer declassification decisions to the CIA — which has demonstrated an inability to face the truth about this program — or pass this authority to the Director of National Intelligence or hold on to the redaction pen himself. The president needs to understand that the CIA’s clear conflict of interest here requires that the White House step in and manage this process."

Of course, throughout the past few weeks, more and more details of what's in the report have been leaked to the press (including some more leaks today, which we'll try to write about shortly)...

Filed Under: cia, declassification, dianne feinstein, mark udall, saxby chambliss, senate, senate intelligence committee, tom coburn, torture

Senate Republicans, Trying To Score Political Points, Claim Democrats Revealing Spying Scandal Puts Lives At Risk

from the insanity dept

The Senate/CIA spying scandal continues to get more and more ridiculous. The latest is that it's turning into a political fight between Democrats and Republicans in the Senate, rather than what it really is: a Constitutional crisis concerning the separation of powers and the ability of Congress to oversee the executive branch's intelligence community. You would think that other Senators would line up behind Senator Feinstein's anger over the CIA directly spying on Senate Intelligence Committee staffers who were compiling a detailed report into the CIA's use of torture.

But, they're not. This first became clear when the top two Republicans on the Committee more or less spoke out against Feinstein:

Many of the Republicans on the intelligence committee didn't share her position. The panel's top Republican, Sen. Saxby Chambliss of Georgia, said he and Ms. Feinstein "have some disagreements as to what the actual facts are."

Others criticized her for airing her concerns so openly. "I personally don't believe that anything that goes on in the intelligence committee should ever be discussed publicly," said Sen. Richard Burr (R., N.C.).

Burr's comments are particularly chilling, as he's actually likely to replace Chambliss as the top Republican -- meaning that if the Republicans recapture the Senate, he's likely to take over Feinstein's job as the chair of the Intelligence Committee. Think about all the stonewalling the Committee currently does. Then picture the guy who said that quote above in charge.

And, in the last day it's gone even more haywire, as Burr and other Republicans are now trying to use this as a political gambit to claim that Senator Mark Udall (a Democrat and the one who really called attention to the CIA's actions) somehow leaked classified info in revealing the CIA's actions. According to Politico, even though Republicans have leaked far more info, they see this as a chance to attack Udall, a first term Democrat known for actually standing up for civil liberties and the rights of the public (how dare he):

Republicans say that not only has the committee’s chairwoman, Sen. Dianne Feinstein (D-Calif.), provided selective information to the public about improper CIA conduct, but they are also now pointing the finger at Sen. Mark Udall (D-Colo.).

The Colorado Democrat, Republicans say, shouldn’t have disclosed internal Senate proceedings over the CIA investigation — something that some Republicans privately say should warrant an ethics committee review.

Democrats counter that Republicans are now engaging in a partisan witch hunt aimed at hurting Udall politically and providing cover to the CIA and the George W. Bush’s administration’s handling of the controversial interrogation and detention program.

I've made it clear before few things annoy me more than partisan bickering in Congress (which is why we rarely even mention which party politicians belong to -- unless, as here, it's a part of the story). And this is a particularly stupid issue to have partisan bickering over. Senate Republicans really think that bashing Udall is a better strategy than making sure that they can have real oversight of the CIA without having the CIA spy on their own staff?

Besides even the arguments that Udall revealed sensitive information, or that it deserves an "ethics" review are incredibly weak. The concern stems from the letter Udall sent the President last week concerning the nomination of a new CIA General Counsel. In it, he mentioned the following:

As you are aware, the CIA has recently taken unprecedented action against the Committee in relation to the internal CIA review, and I find these actions to be incredibly troubling for the Committee's oversight responsibilities and for our democracy. It is essential that the Committee be able to do its oversight work -- consistent with our constitutional principle of the separation of powers -- without the CIA posing impediments or obstacles as it is today.

That reveals nothing that appears to be particularly sensitive or classified. Instead, it actually was general enough that it left many people scratching their heads. But to hear Senator Burr talk about it, he acts as if this information puts the lives of people at danger:

“I think Mark did make some public releases that were committee sensitive information, but that’s for the committee internally to handle,” said Burr. “That’s being reviewed right now.”

Burr added: “If you look historically, the committee has cleaned up any mistakes that members have made. Members can do whatever they want to. My concern is that the release of information could potentially causes the losses of life to Americans. That to me, is a threshold that should be addressed.”

Oh come on. Seriously? By mentioning the fact that the CIA searched the network of the Senate Intelligence Committee staffers, it means people will die? Who does he think he's kidding? We know that there are always ridiculous claims whenever there are intelligence community leaks about "lives in danger" (which almost never pan out to be true). But at least in those cases, there's an argument that could be made how the revelations might tie back to national security issues. There is no such thread here at all. This is not about the CIA spying on potential terrorists. It's about them spying on their overseers, and rather than recognize what this means for their own interests Senate Republicans are pretending that its putting people's lives at risk?

Filed Under: democrats, dianne feinstein, mark udall, politics, republicans, richard burr, saxby chambliss, senate intelligence committee, spying scandal

More Details Revealed Concerning CIA's Spying On Senate Intelligence Committee

from the oh-and-back-to-those-questions dept

Earlier today we covered reports of the CIA spying on the Senate Intelligence Committee as it tried to prevent the committee from releasing a supposedly "devastating" report about the CIA's torture program. That was based on a NY Times article. It appears that reporters at McClatchy were digging into the same issue and rushed out their version, which includes more details, including the fact that the CIA's inspector general has already asked the DOJ to investigate the situation.

Also, the McClatchy report ties this spying by the CIA back to some questions that Senators Ron Wyden and Mark Udall had asked John Brennan back in January. We had written about it at the time, noting that the two were clearly hinting at something having to do with the CIA spying on Americans, but it wasn't entirely clear where the questions were coming from. Reading the questions now, in light of the report of what the CIA was doing, makes the story a hell of a lot clearer. Here was Wyden's exchange with Brennan, concerning whether or not the CFAA -- the federal "anti-hacking" law -- applies to the CIA itself:

Wyden: Does the federal Computer Fraud and Abuse Act apply to the CIA?

Brennan: I would have to look into what that act actually calls for and its applicability to CIA’s authorities. I’ll be happy to get back to you, Senator, on that.

Wyden: How long would that take?

Brennan: I’ll be happy to get back to you as soon as possible but certainly no longer than–

Wyden: A week?

Brennan: I think that I could get that back to you, yes.

We had thought it was a slightly odd question, since the CFAA clearly states that it "does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States." But, that's because we figured that Wyden must be talking about how the CIA was running an "authorized investigation." However, if it was illegally examining the Senate Intelligence Committee staffers' computers, that clause almost certainly doesn't apply -- meaning that the CFAA certainly could now apply. We've put a request to find out if Brennan ever did get back to Senator Wyden. Update: Brennan did reply and admitted that, yes, the CFAA does apply to the CIA, which may explain why the DOJ is now involved in this issue....

Then there's Senator Mark Udall's question to Brennan, which we assumed was connected to Wyden's. Again, in light of the new revelations, that seems likely to be the case as well:

Udall: I want to be able to reassure the American people that the CIA and the Director understand the limits of its authorities. We are all aware of Executive Order 12333. That order prohibits the CIA from engaging in domestic spying and searches of US citizens within our borders. Can you assure the Committee that the CIA does not conduct such domestic spying and searches?

Brennan: I can assure the Committee that the CIA follows the letter and spirit of the law in terms of what CIA’s authorities are, in terms of its responsibilities to collect intelligence that will keep this country safe. Yes Senator, I do.

I guess he meant "except and until we're scared shitless that you're going to expose how ridiculous, useless and illegal our torture program was."

The McClatchy report also details how the CIA accomplished this. Apparently, it had insisted that the Intelligence Committee staffers who were investigating the torture program had to work on computers at the CIA's headquarters, to make sure that classified information didn't leave the building:

The committee determined earlier this year that the CIA monitored computers – in possible violation of an agreement against doing so – that the agency had provided to intelligence committee staff in a secure room at CIA headquarters that the agency insisted they use to review millions of pages of top-secret reports, cables and other documents, according to people with knowledge.

I have to imagine that if you're folks at the CIA, knowing that the computers were in the same damn building, it was just too damn tempting not to go spy on them. After all, the situation was that the CIA had this internal study, which is apparently also fairly devastating and (worse) which showed that the CIA lied to the Intelligence Committee. Furthermore, it appears that the CIA had worked hard to make sure the Intelligence Committee never saw that study. Then, suddenly, in December, Senator Udall claims to have that study -- and the CIA has no idea how he got it. Given who they are, it must have been just way too tempting not to then spy on those computers in their own building. Of course, that further highlights a point we've been making for quite some time. Spies are human too -- and the temptations to abuse their power will always be there. The idea that they're immune to abuse, as put forth by some (including Senate Intelligence boss Dianne Feinstein) is just laughable. And this story just further supports that claim.

Filed Under: cia, dianne feinstein, john brennan, mark udall, ron wyden, senate intelligence committee, spying, torture

CIA Accused Of Spying On Senate Intelligence Committee Staffers

from the biting-the-hand-that-oversees-you dept

While at times, it's appeared that the Senate Intelligence Committee, led by Dianne Feinstein, serves more to prop up the intelligence community than to handle oversight, it has actually clashed quite a bit with the CIA. We've discussed a few times how the Committee has been pushing to release a supposedly devastating 6,000 page report about the CIA's torture program, which cost taxpayers an equally astounding $40 million to produce. However, the CIA has been fighting hard to block the release of the report, arguing that it misrepresents the CIA's actions.

However, things are getting even more bizarre, as the NY Times is reporting that the CIA is now accused of spying on the Intelligence Committee and its staffers in its attempt to keep that report from being released.

The details are still a little cloudy, but in December, Senator Mark Udall revealed that the Senate Intelligence Committee had come across an internal CIA study that apparently corroborated the information that is in the big Senate report -- and which directly contradicted claims by the CIA to the Committee about how the report was inaccurate -- suggesting that, on top of everything else, the CIA lied to the Intelligence Committee. Udall quizzed CIA boss John Brennan about that internal report. And according to the NY Times, it appears that CIA folks freaked out that the Intelligence Committee somehow got access to that internal study, and responded the way the CIA knows best: by starting to spy on Intelligence Committee staffers:

The agency’s inspector general began the inquiry partly as a response to complaints from members of Congress that C.I.A. employees were improperly monitoring the work of staff members of the Senate Intelligence Committee, according to government officials with knowledge of the investigation.

The committee has spent several years working on a voluminous report about the detention and interrogation program, and according to one official interviewed in recent days, C.I.A. officers went as far as gaining access to computer networks used by the committee to carry out its investigation.

On Tuesday, Udall sent a strongly worded letter to President Obama, pushing for the declassification and release of the big 6,300 page report, but also that internal CIA study, which would highlight how the CIA lied. On top of that, he made an oblique reference to this spying activity by the CIA:

As you are aware, the CIA has recently taken unprecedented action against the Committee in relation to the internal CIA review, and I find these actions to be incredibly troubling for the Committee's oversight responsibilities and for our democracy. It is essential that the Committee be able to do its oversight work -- consistent with our constitutional principle of the separation of powers -- without the CIA posing impediments or obstacles as it is today.

In many ways, the idea that the CIA is directly spying on the Senate Committee charged with its own oversight is a bigger potential scandal than many of the Snowden NSA revelations so far. Even more importantly, it may finally lead to Congress taking action against an out-of-control intelligence community.

Filed Under: cia, dianne feinstein, john brennan, mark udall, senate intelligence committee, spying, torture

Wyden And Udall Hint Strongly At CIA Hacking Into Americans' Computers

from the pay-attention dept

By this point, it should be clear that when Senators Ron Wyden and Mark Udall ask questions to senior intelligence community officials in open hearings, it's not because they don't know the answers, but because they do, and they have information that they think should be public. Remember, of course, that, years ago, Wyden and Udall were clearly hinting at what Ed Snowden eventually revealed. So, during yesterday's hearing during which leaders from the intelligence community tried to pull their usual "be scared American people!" schtick, Wyden's and Udall's questions point to some potential mischief by the CIA. Both asked questions of CIA boss John Brennan concerning the legality of certain actions. It is unlikely that they did this because they were just curious. Wyden kicked it off by asking if the Computer Fraud and Abuse Act (CFAA) applied to the CIA:

Wyden: Does the federal Computer Fraud and Abuse Act apply to the CIA?

Brennan: I would have to look into what that act actually calls for and its applicability to CIA’s authorities. I’ll be happy to get back to you, Senator, on that.

Wyden: How long would that take?

Brennan: I’ll be happy to get back to you as soon as possible but certainly no longer than–

Wyden: A week?

Brennan: I think that I could get that back to you, yes.

Of course, we've written about the CFAA many times, and how the broadly (terribly) written law has been abused by law enforcement to go after all sorts of ordinary or reasonable computer activity. But Wyden is flipping this around in a slightly interesting way -- asking if the CFAA applies to the CIA. The answer, actually, is probably no, the CFAA doesn't apply to the CIA. If you look at 18 USC 1030(f) (which is part of the CFAA), it says:

This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States.

It seems likely that the eventual answer from Brennan to Wyden will basically point to this particular language. But that's not particularly important, as the intent of the question likely had little to do with actually looking at the scope of the CFAA, but rather hinting very strongly that the CIA is hacking into computers in a manner that would violate the CFAA if it wasn't being done by law enforcement.

This was then followed up soon after with a question from Udall, again to Brennan, asking a slightly different question about the CIA's legal authority, which Brennan doesn't actually answer, instead answering a different question that wasn't asked:

Udall: I want to be able to reassure the American people that the CIA and the Director understand the limits of its authorities. We are all aware of Executive Order 12333. That order prohibits the CIA from engaging in domestic spying and searches of US citizens within our borders. Can you assure the Committee that the CIA does not conduct such domestic spying and searches?

Brennan: I can assure the Committee that the CIA follows the letter and spirit of the law in terms of what CIA’s authorities are, in terms of its responsibilities to collect intelligence that will keep this country safe. Yes Senator, I do.

Got that? He was asked "do you spy on Americans?" and the answer was "we follow the law." Considering that Wyden and Udall have been among the leading folks pointing out that the intelligence community has regularly reinterpreted the laws in secret in order to broaden their claimed authority, that answer is hardly assuring. Instead, it sure sounds like the CIA admitting that, hell yes, they spy on Americans under their twisted interpretation of the law. Combine that with Wyden's question -- which may or may not be about the same issue, but the two have often coordinated on these issues -- and it certainly hints at the idea that the CIA is hacking into Americans' computers.

Over the last few months, much of the focus has been on the NSA, but it's important to remember that the CIA actually is bigger in terms of its budget, and remains incredibly powerful and secretive. Also, over the last decade or so there appears to be significant evidence of incredible abuse by the CIA. As we've noted a few times, the Senate Intelligence Committee has been sitting on a supposedly explosive report that cost $40 million to put together, detailing some horrific CIA abuses, which the CIA has been doing everything possible to stop from being released.

Given all this, how long will it be until we discover "explosive" revelations about the CIA that confirm what Wyden and Udall have been hinting at?

Filed Under: americans, cfaa, cia, eo 12333, executive order 12333, hacking, john brennan, mark udall, ron wyden, surveillance

CIA Still Trying To Block Release Of Senate's $40 Million 'Devastating' Report About CIA's Torture Program

from the it's-going-to-come-out-eventually dept

Back in October, we wrote about how the Senate Intelligence committee was sitting on an apparently devastating report about the CIA's torture program. The report apparently cost an astounding $40 million to put together (I still have trouble understanding how this is even possible...), but the CIA was fighting against ever having it released, arguing that it was inaccurate and painted them in an unfairly bad light. The report is so devastating that even Senator Dianne Feinstein, long seen as the intelligence community's leading apologist, has been at the forefront of arguing for its release.

Foreign Policy magazine is now reporting that, even as the CIA continues to fight against it, some sort of deal has been reached to release at least part of the report.

On Thursday night, Feinstein said the CIA and the Obama administration have agreed that portions of her committee's exhaustive, 6,000-page report should be shared with the public. News of the agreement follows an intense struggle between the CIA and lawmakers that will likely shape how history views one of the most controversial periods in the post-9/11 era, when the CIA used tactics that President Obama and others have condemned as torture in an attempt to elicit information about terrorism.

At a hearing concerning the nomination of Caroline Krass to become the next general counsel for the CIA, Senator Mark Udall demanded that the document be made public, and threatened to block the nomination until the document was released. Senator Feinstein also quizzed Krass about getting access to related documents, concerning the CIA's legal rationale for its torture program and drone strikes -- only to have Krass refuse to commit to providing those documents. According to the Reuters report Krass told the committee she "did not believe members of the Senate panel had the right to see" those documents.

While so much of the focus concerning the intelligence community has been on the NSA these past few months, there is a growing amount of evidence that the CIA is also completely out of control, and views itself as being beyond basic Congressional oversight. It is a reminder that reforms for fixing the intelligence community cannot and should not focus merely on correcting this program or that program, but on a true and comprehensive overhaul of the entire system.

And it should start with releasing this 6,300 page report that American taxpayers paid $40 million to produce.

Filed Under: caroline kass, cia, dianne feinstein, drones, mark udall, torture

US Gov't Appears To Have Misled The Supreme Court About How The NSA Spied On Americans

from the whoa dept

We've written a few times now about the fact that US Solicitor General Donald Verrilli pretty clearly made false statements to the Supreme Court in a key case concerning NSA warrantless wiretapping. The case, Clapper v. Amnesty International, mainly focused on who had standing to challenge warrantless wiretaps performed by the NSA. The government argued that since there was no evidence that Amnesty International was spied on, it had no standing. The false statement involved the claim that the government would have to inform defendants in cases where warrantless wiretaps were used that that's how the info was gathered. Except the government didn't do that.

It turns out that might not have been the only misrepresentation from Verrilli -- and this next one may be even bigger, involving misleading the Supreme Court on a loophole that allowed the NSA to spy on tens of thousands of Americans.

As was noted earlier this year, upon realizing what happened, Verrilli was apparently furious, and the DOJ has now changed its policy to match with what Verrilli said -- they now will notify defendants, but it's clear that they never did so before.

But Senators Mark Udall, Ron Wyden and Martin Heinrich have sent Verrilli a letter urging him to "set the record straight" with the Supreme Court... but not just on that issue of disclosing. Rather they highlight somewhere else they think he did not paint the correct picture:

In Clapper v. Amnesty, the majority opinion characterizes as “highly speculative” the plaintiffs’ fear that “the Government will decide to target the communications of non-U.S. persons with whom they communicate,” and states that the “respondents’ theory necessarily rests on their assertion that the Government will target other individuals – namely their foreign contacts.” These and other statements in the opinion indicate the Court’s view that the only way the plaintiffs’ communications could be intercepted under the FAA is if those communications are to or from a foreign intelligence target.

Yet with the disclosure and declassification in recent months of relevant documents regarding Section 702, the role of ‘about’ collection under the FAA is now public, although not widely understood. In addition to authorizing the collection of communications to and from foreign, overseas targets, the FISA Amendments Act also has been secretly interpreted to authorize the collection of communications that are merely about a targeted overseas foreigner.

This form of collection allows the government – through the “upstream” collection under Section 702 – to collect any communication whose content includes an identifier, such as an email address, associated with an overseas foreigner who may be a foreign intelligence target. But according to the FISA Court’s October 2011 opinion, the ‘about’ collection likely results in the acquisition of “tens of thousands” of wholly domestic communications every year. In other words, tens of thousands of emails between law-abiding Americans are likely being collected – even though these Americans are not actually communicating directly with a foreign intelligence or terrorism target. As FAA collection was intended to target persons “reasonably believed to be located outside the United States,” and targeting procedures were intended to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States,” the FISA Court in its October 2011 opinion called this expanded FAA collection a circumvention of the “spirit” of the law and a “cause of concern for the Court.”

Just to hammer this point home, they're saying that despite everyone, including the Supreme Court, clearly reading the law to say that Section 702 of the FAA is supposed to be limited to surveillance on foreign targets, it actually also allows surveillance on communications about foreign targets -- and that likely includes tons of communications of Americans. And these communications were believed not to be available under this program, including by the Supreme Court.

The Senators ask Verrilli if he clearly informed the Supreme Court of this at any point, and if not, suggest that he correct the record.

We believe that a formal notification to the Supreme Court of the government’s misrepresentations in the case — both relating to its notice policy and relating to its practice of ‘about’ collection under Section 702 of the FISA Amendments Act — would be an important step in correcting the public record and would be in the interests of the public as well as of the Administration and the Supreme Court.

This seems rather important -- and a point that not many reporters have covered (which also might explain why the Senators are raising it, and noting that the revelation "is not widely understood.") This is a way of alerting people to the simple fact that the NSA has interpreted Section 702 to mean it can collect any communication deemed to be "about" a target, even if the communication is not from or to that target.

Filed Under: donald verrilli, faa, fisa, fisa amendments act, james clapper, mark udall, martin heinrich, nsa, ron wyden, section 702, solicitor general, supreme court, target
Companies: amnesty international

Senators Tell Court There's No Evidence That Bulk Phone Record Collection Was Useful

from the now-that's-an-amicus-brief dept

Here's something you don't see every day: three sitting US Senators filing an amicus brief against the federal government. Amicus (friend of the court) briefs can sometimes be quite useful, but all too often they're sort of there to just reinforce certain arguments made by some of the parties. Sometimes that's helpful, because at times they can present things in a way that is very useful for the court to understand things. It's somewhat rarer for an amicus to really have a unique insight into the issue. But here's one case where there's an amicus brief with a truly unique perspective. Senators Ron Wyden, Mark Udall and Martin Heinrich are asking to file an amicus brief in one of the big cases over the NSA's bulk collection of metadata from all phone calls. This is the case that was organized by the EFF, involving a variety of organizations, from churches to gun rights organizations to civil liberties groups and more.

The three Senators, all members of the Senate Intelligence Committee, have submitted amicus briefs to share with the court that, from what they've seen, there's no evidence that the bulk data collection program has been at all useful -- which is likely to be a key claim by the DOJ.

Now that the government’s bulk call-records program has been exposed, the government has defended it vigorously. Amici submit this brief to respond to the government’s claim, which it is expected to repeat in this suit, that its collection of bulk call records is necessary to defend the nation against terrorist attacks. Amici make one central point: As members of the committee charged with overseeing the National Security Agency’s surveillance, Amici have reviewed this surveillance extensively and have seen no evidence that the bulk collection of Americans’ phone records has provided any intelligence of value that could not have been gathered through less intrusive means. The government has at its disposal a number of authorities that allow it to obtain the call records of suspected terrorists and those in contact with suspected terrorists. It appears to Amici that these more targeted authorities could have been used to obtain the information that the government has publicly claimed was crucial in a few important counterterrorism cases.

They further point out that beyond the lack of usefulness, the implications of the federal government's interpretation of the law has a very wide impact. However, the real focus of the filing is on the supposed usefulness, and the Senators don't pull any punches. They directly call out the NSA and its defenders for trying very hard to misrepresent and mislead the public record:

As Amici and others have made clear, the evidence shows that the executive branch’s claims about the effectiveness of the bulk phone-records program have been vastly overstated and, in some cases, utterly misleading....

For example, the executive branch has defended the program by claiming that it helped “thwart” or “disrupt” fifty-four specific terrorist plots.... But that claim conflates the bulk-collection program with other foreign-intelligence authorities.5 In fact, as Amici know from their regular oversight of the intelligence community as members of the SSCI, “it appears that the bulk phone records collection program under section 215 of the USA Patriot Act played little or no role in most of these disruptions.” .... Indeed, of the original fifty- four that the government pointed to, officials have only been able to describe two that involved materially useful information obtained through the bulk call-records program.... Even the two supposed success stories involved information that Amici believe—after repeated requests to the government for evidence to the contrary—could readily have been obtained without a database of all Americans’ call records....

In both public statements and in newly declassified submissions to the SSCI, intelligence officials have significantly exaggerated the phone-records program’s effectiveness. Based on the experience of Amici, the public—and this Court—should view the government’s claims regarding the effectiveness of its surveillance programs with searching skepticism and demand evidence rather than assurances before accepting them.

The Senators are not the only amici. There are others, including from a group of experts in the history of government surveillance (including noted NSA watcher, James Bamford), a bunch of news organizations (including the American Society of News Editors, the LA Times, McClatchy, the Newspaper Guild, Advance Publications and more), criminal defense lawyers (who apparently are realizing how the NSA has been funneling and laundering data used against their clients under "parallel construction") and PEN American Center, a non-profit representing a bunch of writers. Still, having Senators jump into the case is big news, even if Wyden and Udall have been making their opinion clear for some time.

Filed Under: bulk collection, mark udall, martin heinrich, metadata, nsa, nsa surveillance, patriot act, ron wyden, section 215

Senate Intelligence Committee Rejects A Bunch Of Attempts To Amend Dianne Feinstein's Fake NSA Reform Bill

from the but-of-course dept

The Senate Intelligence Committee apparently just voted on Dianne Feinstein's fake NSA reform bill, which actually legalizes all of the illegal spying and adds a few new ways for the government to spy on everyone. Some of the members of the committee tried to add some amendments which would have made the bill do at least a few minor useful things, but it sounds like all of those were rejected. Incredibly, even though the NSA has been indicating pretty strongly that it's fine if the data it collects can only be held for three years, rather than the five it currently uses, an amendment limiting such data collection to three years was rejected. Even Dianne Feinstein supported that amendment, but increasingly disappointing Senator Angus King (like so many politicians, he seemed promising... until he got into office) voted with the Republicans on the Committee who all wanted to keep the surveillance backups for five years. As for other amendments, here's how Politico summarized them:

Another 7-8 casualty in the intel panel mark-up was a provision to ban the bulk collection of cell-site information that can show where a caller is physically located at the time of making or receiving a call. The NSA has acknowledged running experiments to handle such data, but says it isn’t collecting it now. Most panel Democrats supported the geolocation data ban, and most Republicans opposed it, but some crossed the lines. Feinstein and Sen. Barbara Mikulski (D-Md.), whose state is home to the NSA, voted against the ban. Sen. Susan Collins (R-Maine) voted for it.

The third proposed reform to fall 7-8 was an amendment by Sen. Ron Wyden (D-Ore.) to require that any Foreign Intelligence Surveillance Court decision finding a violation of the Constitution be made public. Again, most Democrats supported the proposal, while most Republicans opposed it. This time, Feinstein and Sen. Jay Rockefeller (D-W.V.) bucked their Democratic colleagues. Collins joined with six Democrats in favor of the transparency mandate.

The overall bill passed out of committee 11-4, with Senators Wyden, Udall, Heinrich and Coburn voting against it. As the Politico article notes, Coburn voting against it is a bit of a surprise, since he's been seen as an NSA supporter. In fact, the article suggests he voted against it because he thinks it puts too many restrictions on the NSA, which is crazy since it puts fewer restrictions than they have today. Specifically, Coburn doesn't want any limits on how long the NSA can keep your data, which is downright nutty.

Filed Under: amendments, dianne feinstein, fisa, fisa improvements act, mark udall, nsa, ron wyden, surveillance, tom coburn

The Senate Is Sitting On A Devastating Report About How The CIA Avoided Oversight Of Unnecessary Torture Program

from the congressional-oversight! dept

So much attention concerning the intelligence community lately has been focused on the NSA. There has been a bit of looking at the FBI as well, but for the most part the CIA has been left untouched -- even though when the Washington Post released details of the US's black budget (thanks to Ed Snowden), it surprised many people to discover that the CIA still has a significantly larger budget than the NSA.

Late last week, the New Yorker's Jane Mayer had a fantastic article revealing some details of a still-classified report put together by the Senate Intelligence Committee which apparently rips the CIA to shreds over its torture program, both in how ineffective the program was, but also in how the CIA tried to avoid any real oversight from Congress.

At its core is a bitter disagreement over an apparently devastating, and still secret, report by the Senate Intelligence Committee documenting in detail how the C.I.A.’s brutalization of terror suspects during the Bush years was unnecessary, ineffective, and deceptively sold to Congress, the White House, the Justice Department, and the public. The report threatens to definitively refute former C.I.A. personnel who have defended the program’s integrity. But so far, to the consternation of several members of the Intelligence Committee, the Obama Administration, like Bush’s before it, is keeping the damning details from public view.

The CIA, apparently, has been "defiant and defensive" in response to the massive report (over 6,000 pages, and which apparently cost $40 million to produce). CIA boss John Brennan has apparently been especially aggressive in trying to challenge the report and in blocking it from being declassified.

As Mayer notes, many of the new details came out due to Senator Mark Udall (who, for years, has been a leader in trying to stop the NSA's bad behavior) first blocking the confirmation of Stephen Preston to become General Counsel of the Defense Department (a position formerly held by Jeh Johnson, who was just nominated to run Homeland Security). Preston, prior to this, had been General Counsel for the CIA. Udall used the opportunity to quiz Preston about both the Intelligence Committee's report and the CIA's angry rebuttal, noting that if Preston stood by the rebuttal, he would be very uncomfortable about confirming him for the Pentagon job.

Preston, in his response, appears to distance himself from the CIA's position, agreeing with some of the findings in the Senate report. In particular, he admits that the CIA "fell well short" of keeping Congress informed and allowing Congress to have oversight over the CIA's torture program.

In fact, Preston admits outright that, contrary to the C.I.A.’s insistence that it did not actively impede congressional oversight of its detention and interrogation program, “briefings to the Committees included inaccurate information related to aspects of the program of express interest to Members.”

The contention that the C.I.A. provided inaccurate information to the congressional oversight committees is apparently extensively documented by the report. Udall notes that the report contains a two-hundred-ninety-eight-page section on “C.I.A. Representations on the C.I.A. Interrogation Program and the Effectiveness of the C.I.A.’s Enhanced Interrogation Techniques to Congress.”

Furthermore, the report apparently notes that rather than actually briefing the entire Intelligence Committee on what it was doing, the CIA only briefed the chairman and vice-chairman of the Senate Intelligence Committee. In other words, beyond providing enough misleading information to fill a large book, the CIA also made sure that the Senate Intelligence Committee members (outside of the two top members) weren't even informed of the details of what they did.

There's a lot more in the Mayer piece, going through many of the key revelations that can be parsed out from both Udall's questions and Preston's answers, but it's apparent that (1) the CIA had very little real oversight from Congress concerning its torture program, (2) the Senate Intelligence Committee is pissed off about this, and (3) there's a massive report detailing all of this that will eventually see the light of day. It does sound like many on the Senate Intelligence Committee -- including (much to my surprise) Dianne Feinstein -- are fighting to have the report released (I'm sure with many redactions). Udall is pushing strongly for such a declassification:

“My views of the C.I.A.’s response remain unchanged,” Udall wrote. “As I told John Brennan during his confirmation hearing, acknowledging the flaws of the C.I.A.’s detention and interrogation program is essential for the C.I.A.’s long-term institutional integrity—as well as for the legitimacy of ongoing sensitive programs. At this point, I do not believe the C.I.A. has sufficiently acknowledged the flaws that the committee has meticulously detailed with thirty-five-thousand footnotes in six-thousand-three-hundred pages.”

Udall also reiterated his demand to “declassify as much of the committee’s report as possible.” He added, “Without the right amount of sunshine, some of the problems documented in the study—to include problems that I believe still exist today—will remain uncorrected. The American people have the right to know what the government has done on their behalf.”

Between the lack of any real oversight of the NSA and now, it appears, the CIA as well, once again we're left wondering how the administration can pretend that these agencies are actually under control and not prone to abuse.

Filed Under: cia, enhanced interrogation, jane mayer, john brennan, mark udall, senate intelligence committee, stephen preston, torture