On Tuesday morning, Senator Dianne Feinstein finally got angry about the intelligence community, revealing much of the back story behind the CIA spying on Senate Intelligence Committee staffers who were investigating the CIA's torture program from the early 2000s. About an hour after her speech, CIA director John Brennan was set to give an interview to NBC's Andrea Mitchell at the Council on Foreign Relations, and of course, she asked about Feinstein's claims, leading Brennan to do what the intelligence community does best: give an answer that appears to say one thing, while really saying something entirely different, and never actually answering the question. Here's exactly what he said:
Andrea Mitchell: First of all, the topic of the morning, which you have addressed here. You said that you want to get the interrogation and detention past practices behind you. But Senator Feinstein today went to the floor. She said she did this reluctantly, that she has been dealing with you privately trying to resolve this since January and only went public today because of events, because of the referral from the inspector general of the CIA to Justice because a lawyer in CIA had referred a crimes report separately accusing the Senate of going in improperly into CIA computers.
Her claim in this scathing speech, frankly, was that the CIA has hacked into the Senate Intelligence Committee staff computers to thwart an investigation by the committee into those past practices. She also alleges that the Panetta-era report was very similar to the Senate’s conclusions about those past practices, but that you were involved in that era in the program itself and that CIA currently was trying to thwart the full review of the harshness of the detention and interrogation practices. Can you respond to that?
John Brennan: Yes. Well, first of all, we are not in any way, shape or form trying to thwart this report’s progression, release. As I said in my remarks, we want this behind us. We know that the committee has invested a lot of time, money and effort into this report, and I know that they’re determined to put it forward.
We have engaged with them extensively over the last year. We have had officers sit down with them and go over their report and point out where we believe there are factual errors or errors in judgment or assessments. So we are not trying at all to prevent its release.
As far as the allegations of, you know, CIA hacking into, you know, Senate computers, nothing could be further from the truth. I mean we wouldn’t do that. I mean that’s just beyond the -- you know, the scope of reason in terms of what we would do.
First of all, note that he is the one who is describing it as "hacking into." But that's not at all what Feinstein alleged. In fact, she said she gave her speech, in part to dispel the claims in the media that the CIA had "hacked" into their computers. Instead, the issue was that the CIA had simply been looking into what the Senate staffers had access to and what they'd been doing with it -- and also that they'd been "deleting" files that those staffers had previously been given access to. The agreement between the CIA and the Senate Intelligence Committee had been that the CIA would not interfere with the investigation, and it seems quite clear that they did that.
But instead of responding to that claim, Brennan just says "well, we didn't hack their computers." He then went on, as he did last week, to imply that the Senate staffers themselves were somehow the problem here, and that the Justice Department may find they violated the law.
But, of course, the media isn't known for its ability to handle nuance, and many interpreted Brennan's non-denial denial exactly the way he intended them to interpret it: as a denial of what Feinstein claimed, even though he said nothing of the sort. First Look Media's Dan Froomkin looked at the way different media outlets covered the story, noting that Politico, the NY Times, Reuters and the Wall Street Journal all misleadingly claimed that Brennan denied Feinstein's allegations. The Associated Press and the LA Times, on the other hand, actually informed their readers of Brennan's word games. The AP stated: "He denied that the CIA 'hacked' into the computer network in remarks on Tuesday but did not address the question of a search" (though I've found other versions of the AP report that don't have that qualification, and instead suggest Brennan denied Feinstein's claims). The LA Times gave the most accurately worded description of Brennan's statements, noting that Brennan "offered carefully worded remarks that did not dispute the actions Feinstein said had taken place, but did deny that they constituted 'spying' on the Senate."
In looking at some other sources, I see the International Business Times actually took on the issue, directly asking whether or not Brennan denied Feinstein's claims and concluding that Brennan's "statements have been vague enough to avoid addressing specific accusations by Feinstein," and further pointing out that Feinstein never actually accused the CIA of hacking, so the response was clearly misleading. That article goes so far as to highlight that "Brennan’s language, then, is somewhat troubling, as it doesn’t address exactly what he and the CIA have been accused of...." Furthermore, that report notes that in a later interview, when asked directly about the CIA deleting files, "Brennan didn’t comment on it directly, instead assuring that the matter is being dealt with." Kudos to the IB Times.
That's about the best I've seen from any of the larger "mainstream" news outlets. Time Magazine quotes Brennan out of context to imply that he's actually addressing Feinstein's allegations, rather than dancing around them -- and even worse, it did so in two separate articles. ABC News also pretends that Brennan denied Feinstein's claims even though he did not. The Boston Globe also claims Brennan's denial was about Feinstein's allegations, rather than Brennan's own made up "hacking" standard.
The Voice of America amazingly gets the story wrong on both ends. First, it claims that Feinstein said the CIA "hacked" the staffers' computers, when she explicitly stated it wasn't a hack. Second, it claims that Brennan said the CIA "did not improperly search lawmakers' computers" when he very carefully did not deny that particular claim.
All in all, if you're not following the story closely (i.e., reading the actual source materials), it appears that the vast majority of the mainstream press absolutely misled its readers in implying that Feinstein said the CIA hacked her staffers' computers and that Brennan then denied her allegations.
There’s been a lot of greatcommentaryalreadyabout the brouhaha between the Senate and the CIA regarding Senator Dianne Feinstein's allegations that the CIA has, in essence, spied on the activities of the Senate’s intelligence oversight committee. I just want to add a few thoughts.
First, it's fair to wonder why the Senate is calling its own inquiry a report on the CIA's "detention and interrogation program." Feinstein herself acknowledges her staff members have been "wading through the horrible details of a CIA program that never, never, never should have existed." A horrible program that should never have existed? Does that sound like detention and interrogation... or like torture and imprisonment?
In fact, the word "torture" appears not once in Feinstein's remarks. Think of the linguistic dexterity required to deliver a 12-page-speech about a CIA torture program and a Senate investigation into that program without even once mentioning the word torture! It would be like me writing this blog post without once mentioning the name "Feinstein." I wouldn't know how to do it, and I'm almost in awe of the propagandists who do.
Second, it was a little weird to hear Feinstein describe the "need to preserve and protect the Internal Panetta Review," if only because "preserve and protect" is the language the Constitution mandates for the President's oath of office: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." It's almost as though some people think an obligation to protect secrecy is as important as an oath to defend the Constitution.
Third, so much security! "[T]he committee staff securely transported a printed portion of the draft Internal Panetta Review from the committee's secure room at the CIA-leased facility to the secure committee spaces in the Hart Senate Office Building." I couldn't help remembering this:
Fourth, if Senator Feinstein really is as outraged as she says, and really wants the Senate's report on the CIA's imprisonment and torture program to be declassified, all she needs to do is introduce the report into Congressional proceedings. She would have full immunity via the Constitution's speech or debate clause, and there's even precedent -- Senator Mike Gravel did precisely this with the Pentagon Papers in 1971. Or Senator Lindsey Graham, who says Congress "should declare war on the CIA" if the spying allegations are true (wouldn't an actual Congressional declaration of war be refreshing?), could do the same. Maybe the Senators are slightly less outraged than they profess?
Fifth, and most insidiously, note that the overseers of this country are still peddling the notion that torture is merely a policy choice, and not a crime. In this regard, Feinstein said, "if the Senate can declassify this report, we will be able to ensure that an un-American, brutal program of detention and interrogation will never again be considered or permitted."
No. If Feinstein or anyone else is serious about ensuring America never again engages in institutional torture, it is imperative that the Justice Department (it's gotten so hard not put square quotes around that phrase) investigate who ordered what Feinstein calls "an un-American, brutal program... that never, never, never should have existed" (hint: this would not be hard); to prosecute those people; and to imprison them if they are found guilty of violating America's lawsagainst torture. Anything else is implicit and unavoidable acknowledgment that torture is not a crime, merely a policy choice with which Dianne Feinstein happens to disagree. And the notion that merely persuading people that torture is bad is the right way to prevent it from happening again is illogical, ahistorical, and, as Feinstein might put it if she were thinking a little more clearly or had slightly different priorities, unAmerican, too.
Earlier today, we wrote about Senator Dianne Feinstein's justified anger over the CIA "spying" on the Senate Intelligence Committee staffers as they went about putting together a massive (and apparently incredibly damning) report condemning the CIA's torture program. Having now watched the whole video of her speech, as well as read the transcript, there's a lot more here to discuss. You can watch the speech yourself if you'd like, or read the full transcript, which we've embedded below:
Apparently, some of the concerns actually stem from an earlier incident, from back in 2010, during which the CIA deleted access to a bunch of documents that it had previously given to the committee staffers. This came after an initial fight over whether or not the CIA would interfere with the staffers' efforts. The Intelligence Committee eventually agreed with the CIA's request that the research work be carried out on the CIA's premises, but only after the CIA promised not to interfere and to leave the staffers alone. The staffers requested lots of documents, and the CIA did a full pure data dump on them, just handing over piles and piles of documents with no context at all. Basically, it appears the CIA sought to bury the staffers in bullshit, hoping to hide many of the important bits. In response, the staffers asked the CIA to provide an electronic search engine, in order to go through the electronic documents. Also, to keep things organized, the staffers would regularly make local copies and/or print out key documents so they could more easily organize them and keep track of them. Based on this, they noticed that some documents that had initially been available "went missing" in 2010:
In May of 2010, the committee staff noticed that [certain] documents that had been provided for the committee’s review were no longer accessible. Staff approached the CIA personnel at the offsite location, who initially denied that documents had been removed. CIA personnel then blamed information technology personnel, who were almost all contractors, for removing the documents themselves without direction or authority. And then the CIA stated that the removal of the documents was ordered by the White House. When the committee approached the White House, the White House denied giving the CIA any such order.
After a series of meetings, I learned that on two occasions, CIA personnel electronically removed committee access to CIA documents after providing them to the committee. This included roughly 870 documents or pages of documents that were removed in February 2010, and secondly roughly another 50 were removed in mid-May 2010.
This was done without the knowledge or approval of committee members or staff, and in violation of our written agreements. Further, this type of behavior would not have been possible had the CIA allowed the committee to conduct the review of documents here in the Senate. In short, this was the exact sort of CIA interference in our investigation that we sought to avoid at the outset.
Apparently, this snafu was settled quietly between the intelligence committee and the CIA, with the CIA promising not to do it again.
Now, as we've been pointing out, and which was revealed by McClatchy and the NY Times last week, this latest fight is focused mostly on a draft of an internal review by the CIA of the torture program, conducted for then director Leon Panetta. Feinstein reveals some more key details about this document. First, it appears that Panetta more or less ordered the CIA to conduct what appears to be a "shadow review" of the very same documents that were being handed over to the Senate staffers. The report, as noted, appears to come to the same basic conclusions about the CIA's torture program (i.e., that it went to insane lengths and produced absolutely nothing in the way of useful intelligence). This internal review also contradicted the CIA's "official response" to the Intelligence Committee's own report.
Here's where it gets a bit trickier. When current CIA director John Brennan was asked for the full internal report, rather than the draft that the staffers had, there appears to have been a freakout at the CIA, because no one had intended for the intelligence committee to see the report, either as a draft or final report. The CIA appears to have believed that Senate staffers got access to the report illegally (hence the CIA's request that the staffers be investigated for illegal activity). Feinstein denies all of this and notes that the draft report was among the many documents provided in the data dump -- in what now looks like an accident by the CIA folks (and some contractors) in charge of compiling the data dump for the intelligence committee. The staffers "found" this document by using that search tool, which they'd asked the CIA to provide.
Feinstein goes on to reject the claims made by the CIA and CIA supporters that (1) the staffers should have known not to read the documents since they were marked "deliberative" or "privileged" and (2) that they somehow "mishandled" those classified documents by printing them out and bringing them to the Senate. As she notes, both of those claims make little sense. On the classification:
As with many other documents provided to the committee at the CIA facility, some of the Internal Panetta Review documents—some—contained markings indicating that they were “deliberative” and/or “privileged.” This was not especially noteworthy to staff. In fact, CIA has provided thousands of internal documents, to include CIA legal guidance and talking points prepared for the CIA director, some of which were marked as being deliberative or privileged.
Moreover, the CIA has officially provided such documents to the committee here in the Senate. In fact, the CIA’s official June 27, 2013, response to the committee study, which Director Brennan delivered to me personally, is labeled “Deliberative Process Privileged Document.”
We have discussed this with the Senate Legal Counsel who has confirmed that Congress does not recognize these claims of privilege when it comes to documents provided to Congress for our oversight duties.
That takes care of that. On the question of mishandling the documents, the argument is not quite as strong, but still quite reasonable. Yes, it does appear that staffers did not follow the exact process for removing the documents -- in that they were supposed to first review it with CIA staffers, but the reasoning here is not so crazy. The review process was supposedly just so that the CIA could make sure that names of key people or details of operations weren't revealed. The staffers made sure that all such info had been redacted before moving the document -- and, of course, they recognized that this document was a bit of a smoking gun for the CIA in that it appeared to confirm that Director Brennan had been lying to the committee. Taking it to the CIA to review would be an odd move -- especially for staffers tasked with oversight of the CIA itself. Even more important, the staffers noticed that, like back in 2010, that draft review document suddenly "disappeared" from their computer system, despite the previous promises that the CIA wouldn't do that any more (also, she points out that the CIA had previously destroyed early evidence about their torture program). So they made the entirely reasonable decision to make a copy and store it in the Senate:
When the Internal Panetta Review documents disappeared from the committee’s computer system, this suggested once again that the CIA had removed documents already provided to the committee, in violation of CIA agreements and White House assurances that the CIA would cease such activities.
As I have detailed, the CIA has previously withheld and destroyed information about its Detention and Interrogation Program, including its decision in 2005 to destroy interrogation videotapes over the objections of the Bush White House and the Director of National Intelligence. Based on the information described above, there was a need to preserve and protect the Internal Panetta Review in the committee’s own secure spaces.
Now, the Relocation of the Internal Panetta Review was lawful and handled in a manner consistent with its classification. No law prevents the relocation of a document in the committee’s possession from a CIA facility to secure committee offices on Capitol Hill. As I mentioned before, the document was handled and transported in a manner consistent with its classification, redacted appropriately, and it remains secured—with restricted access—in committee spaces.
Now that brings us to the latest "fight." In late 2013, after the intelligence committee had seen that draft report, it had requested the final report from the CIA. That set off alarm bells in the CIA when they realized that the committee knew such a report existed, leading to a freakout and further "searching" the staffers' supposedly private computers and networks:
Shortly thereafter, on January 15, 2014, CIA Director Brennan requested an emergency meeting to inform me and Vice Chairman Chambliss that without prior notification or approval, CIA personnel had conducted a “search”—that was John Brennan’s word—of the committee computers at the offsite facility. This search involved not only a search of documents provided to the committee by the CIA, but also a search of the ”stand alone” and “walled-off” committee network drive containing the committee’s own internal work product and communications.
According to Brennan, the computer search was conducted in response to indications that some members of the committee staff might already have had access to the Internal Panetta Review. The CIA did not ask the committee or its staff if the committee had access to the Internal Review, or how we obtained it.
Instead, the CIA just went and searched the committee’s computers. The CIA has still not asked the committee any questions about how the committee acquired the Panetta Review. In place of asking any questions, the CIA’s unauthorized search of the committee computers was followed by an allegation—which we have now seen repeated anonymously in the press—that the committee staff had somehow obtained the document through unauthorized or criminal means, perhaps to include hacking into the CIA’s computer network.
As I have described, this is not true. The document was made available to the staff at the offsite facility, and it was located using a CIA-provided search tool running a query of the information provided to the committee pursuant to its investigation.
Of course, as Julian Sanchez points out, from this description, it certainly appears that the CIA was collecting "just metadata," and, as you may recall, Feinstein has been at the forefront of arguing that no one should care about the NSA's activities, because it's just metadata. Kinda funny how perspective shifts when it's your metadata being discussed. Suddenly, it becomes a constitutional issue:
Based on what Director Brennan has informed us, I have grave concerns that the CIA’s search may well have violated the separation of powers principles embodied in the United States Constitution, including the Speech and Debate clause. It may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities or any other government function.
[....]
Besides the constitutional implications, the CIA’s search may also have violated the Fourth Amendment, the Computer Fraud and Abuse Act, as well as Executive Order 12333, which prohibits the CIA from conducting domestic searches or surveillance.
And yet that doesn't apply when the NSA spies on all Americans? Yes, Feinstein is absolutely right to be angry about this. It is an astounding breach of protocol, and given that it's the Senate Intelligence Committee's job to oversee the CIA, it appears to be quite a brazen move by the CIA to effectively undermine the Senate's oversight. It's just too bad she doesn't see how the very same things she's angry about concerning her own staff apply equally to everyone else.
There's one other issue in the speech that should be highlighted as well. She notes both of the referrals (that we've previously discussed) to the DOJ: the request to investigate the CIA's activities, and the CIA's tit-for-tat response asking for an investigation into the staffers' access and removal of the draft Panetta review. Feinstein also points out that the person at the CIA who filed the crimes report against her staffers at the DOJ was heavily involved in the torture program the report condemns, and certainly suggests that the move is much more about intimidating Senate overseers:
Weeks later, I was also told that after the inspector general referred the CIA’s activities to the Department of Justice, the acting general counsel of the CIA filed a crimes report with the Department of Justice concerning the committee staff’s actions. I have not been provided the specifics of these allegations or been told whether the department has initiated a criminal investigation based on the allegations of the CIA’s acting general counsel.
As I mentioned before, our staff involved in this matter have the appropriate clearances, handled this sensitive material according to established procedures and practice to protect classified information, and were provided access to the Panetta Review by the CIA itself. As a result, there is no legitimate reason to allege to the Justice Department that Senate staff may have committed a crime. I view the acting general counsel’s referral as a potential effort to intimidate this staff—and I am not taking it lightly.
I should note that for most, if not all, of the CIA’s Detention and Interrogation Program, the now acting general counsel was a lawyer in the CIA’s Counterterrorism Center—the unit within which the CIA managed and carried out this program. From mid-2004 until the official termination of the detention and interrogation program in January 2009, he was the unit’s chief lawyer. He is mentioned by name more than 1,600 times in our study.
And now this individual is sending a crimes report to the Department of Justice on the actions of congressional staff—the same congressional staff who researched and drafted a report that details how CIA officers—including the acting general counsel himself—provided inaccurate information to the Department of Justice about the program.
Once again, it's worth noting that these are the very same folks that, just weeks ago, Feinstein was insisting would never abuse their positions because they're professionals. She said that on January 19th. That was just four days after CIA Director Brennan had told her about how the CIA had conducted the almost certainly illegal search on her own staffers.\
And, of course, this is the point that many of us have been making all along to Feinstein and other kneejerk defenders of the intelligence community. No matter how "professional" they are, they're still human. And given situations where their own jobs may be threatened, they're going to do what they do, and that often leads to serious abuses, like the ones that now have Feinstein so angry. That's why we're so concerned by her lack of real oversight of the intelligence community for years, as well as the rather permissive attitude that both Congress and the courts have taken for years to the intelligence community, by insisting that they only do what they do for the purposes of "national security." I'm curious what kind of "national security" reason the CIA has for spying on the very staffers who were investigating the CIA's torture program?
This morning, Senator Dianne Feinstein finally got angry over the abusive practices of the intelligence community that she oversees as head of the Senate Intelligence Committee. Historically, of course, Feinstein has used her role of "oversight" to actually do everything possible to protect and defend the various intelligence organizations. However, as we've been discussing, Feinstein has wanted to declassify and publish an apparently devastating $40 million 6,300 page report detailing how the CIA's torture program was a complete disaster. The CIA has been fighting hard against this, and in the last few weeks, it came out that the CIA also spied on Senate staffers who were working on the report, after they'd uncovered an internal CIA document that corroborated the big report, and which showed the CIA had lied to the Senate. The CIA has hit back trying to blame the staffers for "illegally" taking a classified document, but that argument rings hollow.
Feinstein is apparently quite furious about all of this and let loose this morning about the CIA, claiming that they not only spied on the staffers, but secretly removed documents from the computers the staffers were using. She directly claimed that the CIA "may have undermined the constitutional framework" of Congressional oversight. That's not a charge one throws around lightly.
Besides possible constitutional violations, Feinstein said the CIA may also have violated the Fourth Amendment, various federal laws and a presidential executive order that bars the agency from conducting domestic searches and surveillance. She said she has asked for an apology and recognition that the CIA search of the committee's computers was inappropriate, but, "I have received neither."
While this confirms much of what was reported last week, it's noteworthy that Feinstein is speaking out about it. To date, she has tried to avoid saying much about this whole debate publicly, but it appears that the issue has finally boiled over. As we noted last week, having the CIA spy on its Senate overseers (and potentially tampering with their computers to remove documents) is an incredible overreach.
Of course, wasn't it just less than two months ago that Feinstein claimed that the intelligence community would never abuse its powers, because they were made up of professionals whose activities are "strictly vetted"? Perhaps she'll now go back and admit that perhaps she shouldn't be so trusting of the intelligence community when they're spying on everyone else, beyond just her staffers.
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.
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.
It appears Dianne Feinstein can't be bothered to read (or be read to via briefings) the latest ODNI releases in order to stay on top of the situation she's supposedly overseeing. In Mike's article about her most recent defense of the NSA (TL;DF: "The NSA would never abuse its powers because it's staffed with 'professionals.'"), she made the following claim:
And this goes to where this metadata goes. Because the N.S.A. are professionals. They are limited in number to 22 who have access to the data. Two of them are supervisors. They are vetted. They are carefully supervised.
But that's simply not true. First off, many of the documents note that 23 members of the NSA hold the power to approve queries and contact chaining. Being off by a single person isn't a big deal. Recent personnel changes could have temporarily reduced that number to 22. (However, the number does hold steady at 23 in the boilerplate attached to many of the orders spanning 2008-2011.)
Subject to the restrictions and procedures below, up to 125 analysts may be authorized to access the BR metadata for purposes of obtaining foreign intelligence information through contact chaining [xxxxxxxxxxxxxxxxxxx] ("queries") using telephone identifiers, as described in the [xxxxx] Declaration at paragraphs 8-13.
That's quite a few more than Dianne Feinstein admits to while trying to downplay instances of abuse by NSA personnel. The fewer analysts you have dipping into the data, the fewer chances you have of someone abusing their powers. But 22 sounds a lot more careful than "up to 125." Twenty-two people may be approving queries, but many, many more analysts have access to the metadata.
This number doesn't even include those tasked with organizing the haystack by removing "high-volume identifiers" like restaurants, retail outlets and other businesses that are used by many people but hold very little significance in the contact chain. That is another set of analysts with access, the number of which has yet to be publicized.
In addition, these analysts (number unclear but certainly more than the 22/23 authorized to make query decisions) have access to much more than phone metadata. Another document from the ODNI release (Jan. 2008) points out that the NSA dumps all of its collections (Section 702 is mentioned specifically earlier in the order but others are alluded to) into one big pile -- a pile these "professionals" also have access to.
The Court understands that for purposes of analytical efficiency a copy of meta data obtained pursuant to the Court's Orders in this matter will be stored in the same database with data obtained pursuant to other authorities and data provided to NSA from other sources. Access to such records shall be strictly limited in accordance with the procedures set forth in paragraphs A-G.
So, it's not just metadata abuse we need to worry about. The potential exists for these approved analysts to abuse nearly everything the NSA collects. Obviously, walls between collections would make intelligence gathering much more difficult, but Dianne Feinstein and the other members of the NSA pep squad need to get their facts right before making statements so easily proven false.
This is the famous oversight we've heard so much about (which seems to fill any remaining lung space not taken by 9/11 invocations): it starts out wrong and gets worse. It can't even stay current with documents released to the great unwashed (i.e., constituents) and that are for all intents and purposes historical. There's nothing "new" here as everything released this past week dates from 2006-2011. If anything, Dianne Feinstein should be 2-7 years ahead of the rest of us. Instead, she opens her mouth to release canned defensive statements and removes all doubt that "NSA oversight" is nothing more than distorted jingoism that mistakes subservience to the surveillance state for patriotism.
Senator Dianne Feinstein, as we've noted, seems to have this weird blindness to even the very idea that the NSA might abuse its powers, despite a long history of it doing exactly that. The history of the US intelligence community is littered like a junk yard with examples of massive abuses of power by intelligence folks. And yet, Feinstein seems shocked at the idea that anyone questions the NSA's ability to abuse the system. Why? Because the NSA is "professional." Appearing on Meet the Press this weekend, Feinstein just kept repeating how "professional" the NSA is as if that was some sort of talisman that wards off any potential of abuse. First, host David Gregory pointed to reporter Bart Gellman's claim that President Obama's NSA reforms will allow for the expansion of the NSA's collecting personal data on "billions of people around the world, Americans and foreign citizens alike" and told Feinstein that didn't seem like it was protecting people's privacy. And Feinstein went straight to her "but they're professionals!" argument:
Well, I would disagree with Mr. Gellman. I think that what the president has said is that he wanted to maintain the capability of the program. That, as Chairman Rogers said, it has not been abused or misused. And it is carried out by very strictly vetted and professional people.
Of course it has been "abused" and "misused," but let's not let details get in the way.
Later in the interview, Gregory asks Feinstein to comment on Rep. Mike Roger's totally unsubstantiated (and contradicted by nearly everyone else in the know) claims that Ed Snowden was working for Russian intelligence, and Feinstein bizarrely returns to talking about just how "professional" NSA staffers are.
DAVID GREGORY:
And do you agree with Chairman Rogers that he may have had help from the Russians?
SENATOR DIANNE FEINSTEIN:
He may well have. We don't know at this stage. But I think to glorify this act is really to set sort of a new level of dishonor. And this goes to where this metadata goes. Because the N.S.A. are professionals. They are limited in number to 22 who have access to the data. Two of them are supervisors. They are vetted. They are carefully supervised. The data goes anywhere else. How do you provide that level of supervision?
Of course, Ed Snowden was also "vetted" and "professional." And Feinstein seems to think he may have been working for the Russians, which seems to suggest that any of the other "vetted" and "professional" NSA employees might be abusing their position as well. And, I mean, I'm sure the NSA analysts who listened in on phone sex calls between Americans and then shared them around the office were also "vetted" and "professional."
In fact, I'd think pretty much the entirety of human history concerning intelligence efforts suggests that abuse is almost always carried out by people who are "vetted" and "professional." And that's exactly what has most people so concerned about these programs and what the NSA is doing. No matter how well-meaning, well-trained or well-vetted people are, the temptation and ability for abuse is way too strong. Just last week, we were quoting a bunch of "vetted" and "professional" NSA folks talking about how they fantasized about murdering Ed Snowden. Those comments don't sound particularly professional at all. They sound like people who shouldn't be allowed within miles of people's private data. But Feinstein apparently sees no problems with those kinds of people having the ability to search through your private data. Because they're "professional."
Sen. Dianne Feinstein says she once found a drone peeking into the window of her home — the kind of cautionary tale she wants lawmakers to consider as they look at allowing commercial drone use.
The California Democrat offered few details about the incident when speaking about it Wednesday afternoon, during a Senate Commerce Committee hearing on drone policy at which she appeared as a special witness. But she used the episode to implore lawmakers to “proceed with caution.”
To be fair, the "drone" (explanation on the scare quotes in a moment) was hovering "inches from her face," right outside her window. To be even more fair, Feinstein likes her surveillance bulk and untargeted, not hovering outside her house. She's pushed for CBP drones to be used only within three miles of the border in California, so it can be said she's no friend of drone surveillance.
Feinstein didn't elaborate on the event during her statement, withholding details on when (recently/several months ago) and where (DC/California) it happened. If she had elaborated, it probably would have undercut the "scariness" of the drone invasion.
The Wire spoke by phone with Feinstein's spokesman Brian Weiss, who confirmed that the incident happened at the senator's house in San Francisco several months ago. At about the time, it seems, that Code Pink showed up to protest Feinstein's support for the NSA.
On June 15, the anti-war group held a protest focused on Feinstein, which included activists in disguises and, yes, two remote-controlled helicopters, which might creatively be described as drones.
Here's some video documentation:
Yes, Feinstein's privacy was "invaded" by a tiny pink helicopter roughly the size of a crow that carried no camera. As for her claim that she "startled" the drone causing it to spin around and crash? Well, without a camera, it's pretty hard to "startle" the operator.
For a staunch defender of US surveillance programs to become perturbed at the new face of surveillance technology (even if this particular one didn't have a face, so to speak, or at least couldn't "see") is a bit rich. Sure, Feinstein is working hard to craft regulatory legislation to govern drone usage, but she seems to be more concerned with commercial drone use than government drone use. She has stepped up to keep the CBP from flying theirs all over California, but her scary story of flying eyes was delivered in support of legislation governing commercial drone use. So, even in this case, Feinstein remains more a government surveillance lapdog than a privacy defender. This issue just happens to intersect at a junction privacy activists have been known to frequent.
Too many eyes in the skies -- ones that can fly for hours and provide the sort of long-term surveillance piloted vehicles can't -- is a problem for everyone. This time, it happened to Dianne Feinstein. Unfortunately, the experience failed to impart any understanding as to why the public might be perturbed by the NSA's unguided, untargeted and mostly un-overseen bulk collections programs. Surveillance is surveillance, whether its outside your window or hoovered up from overseas cables, phone records and dozens of other programs operating in complete darkness.
The camera right outside your window is a subjective issue. The many eyes with the access and capabilities to peer into the lives of millions of people seems rather abstract compared to a one-on-one confrontation. But the dangers posed by both are equally real.
Oh, those poor, poor FISA Court (FISC) judges. The court, which has a habit of approving every single request to spy on Americans (though, sometimes asking for minor modifications) has already complained about how unfair it is that everyone thinks they're just a rubber stamp. And, to be fair, some of the documents that have been revealed have shown that there are a few times that the FISA Court has become quite angry about how the NSA and DOJ have basically lied. And, it's even ordered certain programs be (temporarily) stopped or changed. But, in the long run, it's still pretty much allowed the NSA to keep on keeping on. And, the FISC judges have admitted that they're not particularly able to do real oversight, since they're entirely reliant on what the NSA tells them. There's also the fact that all of the FISC judges are appointed by Supreme Court Chief Justice John Roberts, leading to a very specific political leaning in all of them.
And, now, it appears, that the FISC judges are speaking out against any actual reforms or changes to the FISC, because (and I'm not making this up), it might mean they have a bit more work to do. Judge John Bates has sent a letter to Senator Dianne Feinstein basically saying that they'd prefer not to do any more work, and making some crazy claims about how the reforms might "disrupt" the ability of the court to protect national security.
Even if additional financial, personnel, and physical resources were provided, any
substantial increase in workload could nonetheless prove disruptive to the Courts'
ability to perform their duties, including responsibilities under FISA and the
Constitution to ensure that the privacy interests of United States citizens and
others are adequately protected.
Yes, did you get that? Any attempt to better protect the privacy interests of the public -- which is what these reforms are designed to do -- might actually hinder the FISC's ability to protect the privacy interests of the public. Talk about doublespeak. First, there's no evidence that the FISC ever actually protected the privacy interests of the public, and the idea that reforms to protect the privacy interests of the public would somehow undermine the FISC's ability to protect those privacy interests is laughable.
What about the idea of an advocate for the public in certain cases -- someone to make sure that hearings are actually conducted on an adversarial basis? Oh boy, does the FISC hate that idea too:
The participation of a privacy advocate is unnecessary-and could prove
counterproductive--in the vast majority of FISA matters, which involve the
application of a probable cause or other factual standard to case-specific facts and
typically implicate the privacy interests of few persons other than the specified
target. Given the nature of FISA proceedings, the participation of an advocate
would neither create a truly adversarial process nor constructively assist the
Courts in assessing the facts, as the advocate would be unable to communicate
with the target or conduct an independent investigation. Advocate involvement in
run-of-the--mill FISA matters would substantially hamper the work of the Courts
without providing any countervailing benefit in terms of privacy protection or
otherwise; indeed, such pervasive participation could actually undermine the
Courts' ability to receive complete and accurate information on the matters before
them.
Got that? Having an advocate for the public's interest might mean that the court can't dig and get as much info as possible, thereby... um... harming the privacy interests of the public. Really?
Oh, and if there must be an "advocate" for the public, he or she should apparently be really designed to help the judges rather than an independent voice for the public interest:
In those matters in which an outside voice could be helpful, it is critical that the
participation of an advocate be structured in a manner that maximizes assistance
to the Courts and minimizes disruption to their work. An advocate appointed at
the discretion of the Courts is likely to be helpful, whereas a standing advocate
with independent authority to intervene at will could actually be
counterproductive.
Okay, how about requiring the FISC to actually review national security letters (NSLs), instead of just allowing the FBI and others to issue them willy-nilly with no oversight, despite long standing evidence of massive abuses on an astounding scale? Again, too much work:
Drastically expanding the FISC's caseload by assigning to it in excess of 20,000
administrative subpoena-type cases NSLS) per year -- even with a
corresponding injection of resources and personnel -- would fundamentally
transform the nature of the FISC to the detriment of its current responsibilities.
The plan to change how the judges are appointed, so that it's no longer a court shaped in the vision of Justice John Roberts exclusively? No dice, says Judge Bates.
It is important that the process for selection of FISC and Court of Review judges
remain both expeditious and fully confidential; the Chief Justice is uniquely
positioned to select qualified judges for those Courts.
He doesn't explain why any of that makes sense. There's no reason why FISC judges can't be approved in a more diverse manner. Yes, the Senate has certainly made judicial nomination approvals a political football lately, but appointing already approved judges to FISC can certainly be done by Congress rather than by a single guy appointed to a lifetime position.
What about more transparency on when the FISC rules on things? Oh no, says Judge Bates, actually telling the public about what the FISC rules might confuse those stupid idiotic people who make up the public:
In many cases, public disclosure of Court decisions is not likely to enhance the
public's understanding of FISA implementation if the discussion of classified
information within those opinions is withheld. Releasing freestanding summaries
of Court opinions is likely to promote confusion and misunderstanding.
There you have it: let's keep important court rulings secret, because the public are morons. Brought to you by the former chief judge of FISC.
Given that the FISC has taken a lot of the attacks for its weak to non-existent oversight of the NSA, it's no surprise that they're a little touchy about all of this, including the idea that some reforms might suggest that they really did an incredibly crappy job for the past decade or more. But the reasoning given in this letter amounts to little more than (1) we don't want to do any more work, even if you let us hire a lot more people and (2) the public is stupid and annoying, please keep us shielded from them.
