It has been observed that the Barack Obama administration has employed the state secrets privilege more than all preceding presidential administrations combined. There is a certain irony inherent in that fact as Obama ran for office in 2008 specifically committing himself to creating a more open and transparent government.
The contemporary version of the state secrets privilege was first successfully invoked in 1953 in a case involving military secrets. It was intended to provide the government with a mechanism to intervene in judicial proceedings if there were some danger that classified information might be revealed as part of the legal process. In practice, this has meant that if a plaintiff or defendant in a trial sought to use government information to help make his or her case the justice department (DOJ) would be able to intervene ex parte in camera and, after making its case, hopefully obtain a ruling from the judge that the information being sought was inadmissible on grounds of national security.
Originally the secrets privilege was used only rarely and it was also employed with considerable specificity, focusing, for example, on a document or testimony that the government was able to claim would do damage to national security or other significant equities. The department of justice guideline clearly states that the privilege cannot be invoked to “Conceal violations of the law, inefficiency or administrative error” or to “prevent embarrassment to a person, organization or agency of the United States government.” In practice, however, even if error or embarrassment is the real reason for the action, it can always be claimed that the issue involves national security, so the guideline is essentially toothless. Indeed, the very first assertion of the privilege in 1953 was itself fraudulent. After the papers relating to the crash of a military plane were finally declassified in 2000 it was subsequently determined that the driving force behind the cover-up was to avoid embarrassing the Air Force over the poor maintenance of its aircraft.
The decision to declare information admissible or not is up to the presiding judge, but he or she might or might not actually review the relevant document or other evidence in question, frequently relying solely on the government lawyer’s testimony or a DOJ affidavit regarding the potential impact. If the judge concurs in the government case, access to the information would be denied without further discussion and the trial might then proceed.
But deviating from the precedents of how state secrets is supposed to work has made the protections built into the process largely irrelevant. Currently the privilege is most often employed by the government not to stop exposure of a piece of information but rather to intervene to prevent a trial from taking place at all. The George W. Bush administration used state secrets privilege to block litigation relating to torture or abduction, most notably in the 2007 American Civil Liberties Union suit on behalf of five rendition victims filed against Jeppesen DataPlan, a subsidiary of Boeing Company that had participated in the process. The Bush DOJ also twice gagged FBI whistleblower Sibel Edmonds based on state secrets to preemptively block her from saying anything about corruption at the Bureau.
The Bush administration even blocked any legal recourse for those who had been tortured. Canadian Maher Arar, who was detained by U.S. government agents in 2002 and rendered to Syria where he was tortured was denied access to American courts for redress after it turned out he had been accused based on inaccurate information. German citizen Khaled el-Masri was tortured at a U.S. government black site in Afghanistan after being rendered from Macedonia. He was finally released when it was determined that he had been wrongly detained. Both Arar and el-Masri were blocked from suing the United States government through assertion of the state secrets privilege.
The Obama administration has expanded the use of state secrets to stop challenges to the assassination-by-drone program and even to defend no-fly lists. The increased recourse to the state secrets privilege by administrations apparently seeking to avoid scrutiny or accountability has inevitably led to abuses in terms of how it is employed. One is inclined to expect bizarre results when a government can regularly claim that it has secrets that it cannot share that potentially preempt any retributive action through the judiciary. It might rightly be suggested that such action is symptomatic of a totalitarian state, and so it is.
A recent case in a New York Federal court involving a lawsuit that was dismissed by the presiding judge has only received limited media coverage, but it exhibits clearly exactly how judicial remedies targeting government illegality are gradually being stifled by the department of justice. As the government was not even a party to the New York case, it also raises questions about the White House’s willingness to work hand-in-hand with accommodating private organizations to carry out the type of “covert actions” that were once the purview of intelligence organizations.
The defendant in the New York trial was United Against Nuclear Iran, which has a budget just shy of $2 million. The group, which has obtained a 501(c)3 educational tax status which allows it to limit identification of its donors, has offices in Rockefeller Center in New York City and posts its findings using a billboard on Times Square. Describing itself as engaged in “economic and psychological warfare” against Iran, it is active on Capitol Hill providing “expert testimony” for congressional committees, to include “help” in drafting legislation. At a July 2014 Senate Foreign Relations Committee hearing on Iran all three outside witnesses were from UANI.
Meir Dagan, former head of Mossad, is on the UANI advisory board, which also includes ex-Senator Joseph Lieberman, former Homeland Security Adviser Fran Townsend, ex-CIA Director James Woolsey, and former senior diplomat Dennis Ross, all of whom have frequently been seen as favoring Israeli interests. Lieberman, Townsend, Ross, and Woolsey might well have easy access to U.S. government-generated information even though they are no longer in office.
UANI is active in the media but is perhaps best known for its “name and shame” initiatives in which it exposes companies that it claims are doing business with Tehran in violation of U.S. sanctions. UANI routinely intimidates its targets by defaming their business practices as well as by demanding both examination of their books and an audit carried out by one of its own accountants followed by review from an “independent counsel.”
UANI was being sued by a Greek billionaire Victor Restis whom it had outed in 2013. Restis, claiming that he was defamed, believes the exposure was fraudulent and carried out in part to damage his business. He filed suit demanding that UANI and billionaire Thomas Kaplan turn over documents and details of relationships regarding UANI donors who he claimed were linked to the case. Kaplan once boasted “we’ve [UANI] done more to bring Iran to heel than any other private sector initiative.”
Restis intended to expose Kaplan’s connections and associates both inside and outside the government but the department of justice twice intervened in the case, asserting that the exposure of the sought-after documents would damage national security. As in all state secrets cases, the meeting between the judge and the DOJ lawyers was conducted in secret and neither plaintiff nor defense attorneys were given access to the alleged classified material. In state secrets initiatives the DOJ nevertheless normally indicates which agency had sought the intervention and provides some hint of what was involved, but in this case there was no indication why sensitive information would be held by UANI or what the possible government interest in the matter might be. The second DOJ intervention proved decisive as Judge Edgardo Ramos agreed to dismiss the lawsuit on March 26th.
Passing intelligence related or law enforcement documents to a private organization for exploitation is illegal, and it is also illegal for the government to conduct a covert action, meaning an activity that could be plausibly denied and not linked to any federal agency, if doing so might influence opinion or policies in the United States. In this case, the justice department’s only apparent concern was that the activity might be exposed. There was no indication that DOJ would go after UANI for having acquired the information which almost certainly was uncorroborated work product provided by the Treasury Department section responsible for sanctions, the Office for Terrorism and Financial Intelligence, headed by Undersecretary David Cohen.
There is, of course, speculation that UANI is little more than a front for Israeli or U.S. intelligence. That just might be true and should surprise no one, but the more important issue is the right of individuals to litigate to obtain redress from damages inflicted by a second party without interference by the government. Even if one accepts the necessity of having something like a state secrets option on the books, the introduction of the DOJ into a dispute in which the government is not even a party suggests some ugly possibilities.
It would probably not shock anyone to deduce that the White House just might be using the secrets privilege in an indiscriminate fashion to derail inquiry into a situation that it might find embarrassing or where there is potential criminal liability, as appeared to be the case in New York. In Restis v. UANI there is quite clear evidence that something is very wrong and is being covered up. Either classified information was obtained criminally or it was shared with a private organization illegally by the government itself to enable more effective harassment of innocent people and companies. Or perhaps a deliberate attempt was orchestrated by parties currently unknown to shape opinion in the United States through alarming assertions about perfidious Iran and the corrupt businessmen who are enabling it to evade sanctions. It could have had both objectives. Either way, the dismissal of the lawsuit was just one more indication that the tendency of the White House to bend the rules to produce a desired result is, if anything, growing.
Philip Giraldi, a former CIA officer, is executive director of the Council for the National Interest.
Having experienced several more weeks of mainstream media jingoism about the “Iranian threat,” culminating in the outrageous Joshua Muravchik op-ed advocating war with Iran as the “best option” for dealing with that country, one has to ask why it is that a gaggle of self-proclaimed “experts” has been able to capture the foreign-policy narrative so completely, in spite of the fact that they have been wrong about nearly everything?
Neoconservatives have two core beliefs. First is their insistence that the United States has the right or even the responsibility to use its military and economic power to reshape the world in terms of its own interests and values. Constant war thus becomes the new normal. As Professor Eliot Cohen, a former State Department adviser under George W. Bush, put it, “For the great mass of the American public … and for their leaders and elites who shape public opinion ‘war weariness’ is unearned cant, unworthy of a serious nation… .”
The second basic neoconservative principle, inextricably tied to the first, is that Washington must uncritically support Israel no matter what its government does, which makes the defense of all things Israeli an American value. William Kristol, editor of The Weekly Standard, made the neoconservative viewpoint clear when he recently wrote that Benjamin Netanyahu would win the GOP’s presidential nomination, if he could run, because “Republican primary voters are at least as hawkish as the Israeli public.” Other neoconservatives continue to pursue the goal set out by the “Clean Break” memo provided to then-Israeli Prime Minister Netanyahu in 1996, which recommended the reordering of the entire Middle East to benefit Israel. The memo was written by Richard Perle, Douglas Feith, James Colbert, and David and Meyrav Wurmser.
Beyond foreign policy, things get a bit fuzzy with large variations regarding the kinds of social issues that energize many actual conservatives. In fact, neoconservatives usually avoid discussing abortion, immigration, gay marriage, race, and the proper place for religion in a civil society because they find themselves on the progressive side of the argument. They are also light on the ground when it comes to constitutionalism and civil liberties, concerns of traditional conservatives, preferring instead to back the warfare state coupled with a unitary executive, which frees up the president to exercise the military option in international relations.
This ambivalence is because, as it has been observed, many neoconservatives are former leftists or even radicals who have by their own account “been mugged by reality,” leading to a gradual shift away from the Scoop Jackson Democratic nest where many of them were nurtured to the Republicanism of Ronald Reagan, where they focused more practically on obtaining positions in the Pentagon. Many eventually supported John McCain before gravitating to the George W. Bush administration, where some of them found senior-level government positions in both the White House and Defense Department.
Neoconservatives largely mix with other neoconservatives, which means that they operate with considerable internal cohesion, but that does not fully explain their success in selling a product that has begun to smell very bad if one judges by results rather than marketing. But perhaps the answer lies in understanding how the bubble around Washington works, which the neoconservatives have mastered. They are particularly adept at resume building within their clique, understanding full well that a Fellow at the Johns Hopkins School of Advanced International Studies is more likely to find space on a friendly editorial page than someone without that cachet who has a large audience on the alternative media, particularly if that someone is diverging from status quo policies or staking out a position that differs substantially from foreign-policy groupthink. Their ability to seek out and build relationships with friends in the mainstream media, which the Guardian describes as “extraordinary,” has significantly contributed to their success. In 2002 alone the Washington Institute for Near East Policy (WINEP), an AIPAC spin-off, by itself placed 90 op-eds in the mainstream media. They also enjoy, for the same reason, unchallenged access to government committees and advisory commissions.
Muravchik, currently a Hopkins’ Fellow, is a prime example of an ascendant neoconservative. His biography is typical of the older generation of neoconservative, starting out as a socialist before becoming a Democrat in the Scoop Jackson-inspired Coalition for a Democratic Majority, and finally ending up as a GOP-leaning neocon. Stops along the way include what some have described as “neoconservative alphabet soup.” Muravchik is or has been affiliated with the American Enterprise Institute (AEI), WINEP, Project for the New American Century (PNAC) the Jewish Institute for National Security Affairs (JINSA) and the Committee for the Liberation of Iraq (CLI), where he served on the board.
Always completely protective of hardline Israeli interests, Muravchik was one of the neoconservatives who pushed most diligently for war against Iraq post-9/11, and he has persistently called for an attack against Iran. In 2006 he wrote an op-ed declaring that “We must bomb Iran,” with follow-up pieces demanding more of the same in 2007, 2008, 2011, and 2014.
Neoconservatives like to write books as part of their credential building process, making sure that the results are promoted through their networks and favorably reviewed no matter how ridiculous. Laurie Mylroie’s Saddam Hussein’s Unfinished War Against America, which claimed that Iraq had bombed the world Trade Center in 1993, was both printed and praised by AEI. Muravchik’s 2014 offering Making David into Goliath: How the World Turned Against Israel explains that Israel has been the victim of the embrace of a progressive-inspired model of “national/ethnic struggle.” In other words, the turn against Israel is due to leftist politics and has not been the result of anything Israel has done.
Muravchik’s career has carefully advanced in such a fashion as to validate himself as an expert on international affairs even though it should be apparent that he is little more than an academic apologist for a rather narrowly construed point of view. And nearly every other neoconservative has a similar trajectory, starting out in elite academia and then bouncing from position to position inside and outside the government, aided at every step by others in the movement. The neoconservatives benefit particularly from their ownership of a number of foundations and institutes, the aforementioned alphabet soup, that provide resting places between university and government positions, complete with salaries and important-sounding titles. Many also are provided with lucrative opportunities in the private sector that free them to subsequently concentrate on the true task at hand, which is shaping U.S. foreign policy.
If one looks at the careers of 30 well-known neoconservatives, one notes that there are a number of stops that pop up on many of the resumes, a progression that might well be described as something like a cursus honorum whereby the neoconservative aspirant is afforded status and credibility before stepping out onto the national or international stage. Muravchik’s multiple affiliations are exceptional, but they are actually exceeded by Richard Perle, who has been connected to AEI, FDD, PNAC, JINSA, CLI, the Hudson Institute, U.S. Committee for a Free Lebanon, Center for Security Policy, and the Committee on the Present Danger.
The Project for the New American Century, launched in 1997 by William Kristol and Robert Kagan, served as an apparent incubator for the modern neoconservative movement and was a popular introduction to national politics. By the time it ceased to operate in 2006, four out of five of the neoconservatives who rose to prominence in the George W. Bush administration and subsequently were in some way affiliated with it.
The second most popular stop for neoconservatives, not surprisingly, was and still is the American Enterprise Institute, where more than half have been affiliated. Other popular destinations include the Foreign Policy Initiative, founded by Kristol, Robert Kagan, Dan Senor, and Eric Edelman. There is also the Foundation for the Defense of Democracies, which is backed by Kristol as well, but headed by Canadian Mark Dubowitz, a Hopkins product and FDD’s Executive Director, who is regarded by Congress as an expert on how to deal with Iran and also reportedly briefs “…counterterrorism officials on a range of national security and terrorism-related concerns.” Dubowitz’s resume suggests, however, that he actually doesn’t appear to know much about Iran apart from what can be done to punish it economically. Nor does he have the depth that comes from actually working for a law enforcement or intelligence agency. He is basically an academic, a familiar pattern for neoconservatives.
Another focal point is Johns Hopkins University’s School of Advanced International Studies. Paul Wolfowitz, architect of the disastrous Iraq War, served as dean prior to entering the Pentagon as a political appointee in 2001, which might partly explain the attraction. Indeed, one might suggest that SAIS is the academic wing of the neoconservative movement. Ten out of 30 leading neoconservatives have had some connection to Hopkins.
A third of neoconservatives have worked for JINSA. More than two-thirds have written for The Weekly Standard, National Review, or the Wall Street Journal. Surprisingly few have had any direct connection to the American Israel Public Affairs Committee (AIPAC), but more than half have worked with WINEP, which was founded by AIPAC. Neoconservatives also figure prominently in the Middle East Forum and the Hudson Institute. Some have been active in Bill Kristol’s most recent venture the Emergency Committee for Israel (ECI), launched in collaboration with Christian Zionist Gary Bauer. Military service is rare among the neoconservatives, which has led to frequent charges that they are armchair warriors more than willing to let others die to achieve their aggressive foreign policy objectives.
That the neoconservative cursus is supported by large amounts of money should not be ignored, as that is the glue that enables aspirants to persevere and turn one’s political leanings into a viable career. AEI had income totaling $46 million in 2013. WINEP received $8.7 million in the same year.
So how do critics of the incessant warfare combined with obeisance to pro-Israel policies get heard? Well, by and large they don’t get to capture an audience because they have little or no access to the mainstream media or to policymakers. There are no traditional conservative media outlets in any way comparable to the mainstream magazines, newspapers, and talk shows that the neoconservatives dominate, though TAC probably comes closest to being a viable alternative. The Ron Paul movement’s interest in fixing America’s global role has withered and died as the organizations he spawned have turned inward and largely eschewed foreign policy. No one who is a traditional conservative with cautious views about interventionism is particularly welcome on television or in testimony before government panels or commissions.
Most of all, there is no structure in place in any way comparable to what the neoconservatives have developed to nurture, support and guide young conservatives who would like to make a career in exposing the all too evident falsehoods inherent in the new American nightmare. The neoconservative example may be deplorable, but it has been all too effective, and seemingly impossible for those with limited resources to emulate.
Philip Giraldi, a former CIA officer, is executive director of the Council for the National Interest.
The Washington Post reports that “terrorism trend lines are ‘worse than at any other point in history.’” But what is terrorism? It has frequently been pointed out that “terrorism” is a tactic, not an actual physical adversary, but it is less often noted that a simple definition of what constitutes terrorism is hardly universally accepted, while the designation itself is essentially political. The glib assertion that one man’s terrorist is another man’s freedom fighter fails to capture the distinction’s consequences as the terror label itself increasingly comes with a number of legal and practical liabilities attached. Describing an organization as terroristic in order to discredit it has itself become a tactic, and one that sometimes has only limited connections to what the group in question actually believes or does.
The bone of contention in defining terrorism is where to draw the line in terms of the use of violence in furtherance of a political objective. In practice, it is generally accepted that state players who employ violence do so within a social framework that confers legitimacy, while nonstate players who use political violence are ipso facto terrorists, or at least susceptible to being tagged with that label, which confers upon them both illegitimacy and a particularly abhorrent criminality. But some on the receiving end of such a Manichean distinction object, noting that the laws defining terror are themselves drawn up by the governments and international organizations, which inevitably give themselves a pass in terms of their own potential liability. They would argue that established regimes will inevitably conspire to label their enemies terrorists to marginalize both resistance movements and internal dissent in such a way as to diminish the credibility of the groups that are so targeted. Turkish President Recep Tayyip Erdogan has recently been doing precisely that, and one might reasonably argue that government use of violence is often in practice indistinguishable from the actions of nonstate players.
Some common dictionary definitions of terrorism include engaging in “the systematic use of terror,” surely an indication of the inscrutability of an issue when the word must be used to define itself. The United Nations has been unsuccessfully negotiating a Comprehensive Convention on International Terrorism since 2002 that would define terror as causing death or serious injury or destroying or damaging public or private property “to intimidate a population, or to compel a Government or an international organization to do or abstain from doing any act.” The United States Federal criminal code uses similar language, as does the Patriot Act, with the key elements being the use of violence or physical destruction to “intimidate or coerce” a civilian population or an existing government.
Governments are aware of what can be accomplished by invoking the word “terrorism.” The diplomacy-averse United States frequently hides behind the label, as it is prohibited by law from negotiating with groups so-labeled, and thereby avoids having to confront the possible legitimacy of what they represent. And it also justifies a uniformly violent response, which is invariably described as self-defense.
Fourteen years ago the “global war on terror” was used to justify wholesale American intervention in predominantly Muslim countries. A number of European countries, including France and Britain, have followed the example of the two Patriot Acts by introducing antiterrorism legislation that provides special police and intelligence service authorities that limit normal legal protections in terrorism cases. The broadly written laws have largely rendered the authorities immune from either regulation or prosecution, and governments in the West have generally been reluctant to allow any third-party inquiries into the related behavior of military and police forces. In the United States the state secret privilege, originally intended to prohibit the exposure of classified information in court, has been used to completely derail judicial proceedings relating to offenses allegedly committed by the government in terrorism cases.
And critics of the essentially hypocritical double standard used in defining terrorism certainly have a point. One might reasonably argue that the use of drones, in which “signature” targets are killed because they match a profile, fits comfortably within the definition of terrorism. During 2003-4, American Army and Marine forces in Fallujah sometimes shelled and bombed targets in the city indiscriminately and were certainly responsible for hundreds of civilian deaths. The Israeli Defense Forces killed thousands of civilians in two incursions into Gaza as well as several attacks on Lebanon. There was no declaration of war to justify the use of armed force in either case, and independent observers noted that many of the civilian casualties could have been avoided, normally a defining factor that makes an incident terror. Both Israel and the United States turned the tables on the situation by referring to their opponents and victims as “terrorists.” There has been no accountability for the deaths because it was two governments that carried out the killing.
In a world seemingly obsessed with terrorism it was inevitable that something like an anti-terrorism industry would grow dramatically. Every television and radio network has its own stable of pundits who pontificate on every violent incident, and there also are well-compensated freelancers, who describe themselves as experts, such as Evan Kohlmann and Steve Emerson. Emerson recently had to apologize after claiming that Birmingham, England had a number of no-go areas controlled by local Muslim extremists.
It should be no surprise that lawyers have now also gotten into the game. In 1996 Congress passed the Anti-Terrorism and Effective Death Penalty Act, which allows victims of terrorism to file civil suits in federal and state courts against sponsors or supporters of terrorism. Once you have a group or individual labeled as terrorist, or providing assistance to terrorists, there are a number of options you can pursue. The burgeoning antiterrorism industry appears to be in some ways linked to the increasing employment of Lawfare, which uses the legal system to wage war by alternative means, making it possible to obtain a favorable judgment and damages from the assets of a recognized terrorist organization. Such litigation benefits from favorable legislation in the United States that makes terrorism a worldwide crime subject to U.S. judicial review.
Recent court cases have involved both states that allegedly sponsor terrorism or actual organizations that are now parts of governments that either currently or at one time were perceived to be terrorists. Many of the groups targeted are enemies of Israel, and the Israeli Lawfare center Shurat HaDin is most active in pursuing such litigation. In a recent case in New York City, the Palestinian Authority was successfully sued by a group of Israelis and Americans over terrorist attacks that took place in Israel in 2002-4. If the appeal fails, the Palestinian Authority will be required to pay $1 billion in damages and will be bankrupted, with negative consequences for the United States, which has been seeking to create a viable government on the West Bank.
The U.S. Department of State identifies four countries as state sponsors of terrorism, making them prime targets for sanctions and other legal action. They are Cuba, Sudan, Syria and Iran. Cuba is an anomaly as it has not threatened anyone in decades but remains on the list due to the deep passions within America’s politically powerful Cuban Lobby. Sudan likewise should not be so designated, as even the U.S. government admits that it is cooperative on terrorism issues.
This leaves Syria and Iran, both of which are regarded as state sponsors of terrorism even though both are themselves victims of terrorist attacks carried out by groups supported by the United States. They are on the list because they harbor or cooperate with Hezbollah, Hamas, and Palestinian Islamic Jihad. All three groups consider themselves to be resistance movements against the illegal Israeli occupation of Palestine, but Israel regards all three as terrorists, a view shared by the United States on the state department’s Foreign Terrorist Organization list. That viewpoint is not necessarily shared by many European governments, which regard the organizations as having evolved into legitimate political parties. There are also thousands of individuals and groups considered to be terroristic or criminal, collected by the U.S. Department of Justice on its Special Designated Nationals List. Individuals and organizations on the list have their assets blocked and are subject to other punitive action by the United States government.
Being designated by the Department of the Treasury or state does not necessarily mean that someone or some organization was actually involved in terrorism. The Texas-based Holy Land Foundation, an Islamic charity, was declared a terrorist organization in 2001. Its officers were convicted and imprisoned in a 2008 trial because the Treasury Department determined ex post facto that it had given money to Hamas before that group was itself named as a terrorist organization.
Inclusion on the State or Treasury lists can mean that there is solid evidence of wrongdoing, but it can also represent mere insinuations or a strong desire to see a group singled out for punishment. In any event, once a group or person is designated for a list, it is difficult to get off. Organizations that have not engaged in terrorist activity for many years remain on the list while other groups that are active escape censure. Recently, the Mujaheddin e Khalq (MEK), an Iranian terrorist group that killed six Americans in the 1970s, was removed from the list under political pressure from Congress and the media. Again, Israel was involved. MEK is an enemy of the current government in Tehran and is itself an important component of the Israeli intelligence effort against Iran, having been involved in the fabrication of information suggesting that Iran has an active nuclear weapons program as well as participating in the assassinations of Tehran’s scientists.
So what terrorism actually consists of very much depends on one’s perspective, rendering the word itself largely meaningless. But those who are listed as terrorists experience real consequences even accepting that the designation is both selectively applied and politicized. The United States and Israel in particular use the terrorism label to demonize opponents, drum up fear, and generate popular support for security policies that might otherwise be unpalatable. They also justify their own behavior by asserting that they occupy the moral high ground in the defense of the world against terror, a claim that certainly should be regarded with considerable skepticism.
Philip Giraldi, a former CIA officer, is executive director of the Council for the National Interest.
Recent reports that the National Security Agency (NSA) appears to have installed a worm in computer hard drives that enables it to surreptitiously collect information, compartmentalize and conceal it, and later enable access without being detected have failed to produce much of a reaction in the media and from the public. This is possibly due to the complexity of the technology involved but it might also be because a certain fatigue regarding the NSA and what it has been up to has replaced the initial indignation about the violation of privacy rights. It may well be that most Americans now accept the fact that wholesale government intrusion into areas once regarded as off limits is a feature of post 9/11 life. That shift in perception might well be exactly what the White House has intended to accomplish, anticipating that it will be able to wait out the critics and avoid any meaningful reforms.
Most interested parties who have followed the debate over NSA bulk data collection are likely only dimly aware that there have been a number of panels and review groups convened to examine the NSA practices, most of which have concluded that the program should be eliminated on both civil liberties and effectiveness grounds. The most venerable and quite likely the most thorough was named back in August 2013 by President Obama in the wake of the Edward Snowden revelations. It was called “The President’s Review Group on Intelligence and Communications Technologies” and was intended to examine what reforms might be necessary to respect personal liberties while at the same time protecting national security. The stated intention for convening the panel was to restore public trust in what the White House was doing by way of the NSA.
The panel consisted of former national security official Richard Clarke and ex-CIA Acting Director Michael Morell as well as three lawyers who are currently professors at major universities: Geoffrey Stone, Cass Sunstein, and Peter Swire. Sunstein also served in the Obama administration as director of the Office of Information and Regulatory Affairs while Swire was the chief privacy consultant in the Office of Management and Budget under Bill Clinton as well as under Obama.
As is frequently the case with government commissions and boards, a clear majority of the panel consisted of legal and security experts who themselves were on intimate terms with the government and are not known to be critics of its policies. Cass Sunstein’s wife Samantha Power is the current U.S. Ambassador to the United Nations and Sunstein himself was a supporter of George W. Bush’s military commissions. Peter Swire worked for the Clinton and Obama administrations while Richard Clarke was a national security adviser in both Republican and Democratic White Houses and was notable for running around “with his hair on fire” warning that something was coming shortly before the 9/11 attack. Geoffrey Stone was the only panelist with no senior government affiliation. He is a Law Professor at the University of Chicago and serves on the board of advisors for the American Civil Liberties Union. In 2006 he endorsed the view that the NSA surveillance program was “unlawful.”
In hindsight it is illuminating to review what the panel concluded and what has actually taken place. The five participants came up with 46 recommendations, all of which were approved unanimously. They are described in a 239 page unclassified publication, “The NSA Report: Liberty and Security in a Changing World.” The key judgments fall into three separate areas. The first was the bulk collection of the metadata itself, which was done by the NSA after 2006 by virtue of a blanket approval from the Foreign Intelligence Surveillance Court (FISC). The panel recommended that a third party rather than the government itself should hold the data base, that querying the information would require a court order, and that the data be held for only two years instead of five.
The second issue was the National Security Letters, which were authorized post 9/11 for the FBI to obtain personal information on suspects. The letters are classified secret but they require no judicial oversight and go directly to the source of the information, which in turn is not allowed to reveal to the suspect that he or she is being investigated. In practice, the letters were widely abused and only rarely related to actual terrorism cases. The panel recommended that the letters require a court order but the FBI objected that such a move would make the process “inefficient.”
The third broad area of inquiry was the Foreign Intelligence Surveillance Court (FISC), which was founded in 1978 and in theory limited the government’s ability to intercept communications in the United States without probable cause that there was a possible espionage connection. In fact, however, the court became a rubber stamp for government action, rarely challenging or even examining the case being made. The panel recommended that the board create a privacy and civil liberties advocate who would be able to challenge the government proposals.
So what happened? President Obama agreed that the metadata should be held outside the government but has recently reneged, arguing that the proposal was unacceptable for both “legal and practical reasons.” The recommendations to require a court order to access the database and to reduce the time information can be held are in limbo, part of the legislation on NSA that is stalled in Congress pertaining to the USA Freedom Act which is unlikely ever to emerge now that the Republicans are in control. The White House also rejected requiring judicial action to issue a National Security Letter and made civil liberties advocacy to the FISC dependent on the court itself asking for such participation.
So nothing has changed and even if one instead evaluates the programs purely as a possibly necessary evil, collecting information to keep us safe, the result has to be questionable at best. When the panel examined the evidence it was determined that the metadata program, for all its expense and intrusiveness, had in 2012 queried only 288 phone numbers, which resulted in 12 actual leads, none of which helped prevent a terrorist incident. Indeed, in all the seven years that the program had been running prior to that time no terrorist attacks were prevented because of it. The NSA and White House argued nevertheless that the program had to be preserved because it might be needed in case a major attack were to be planned in the future. The panel bought into that argument.
The panelists agreed in their report summary that it would be wrong to wholly trust either elected or appointed government officials. But at the same time all but one of them had previously held high-level federal appointments and were comfortable with how the bureaucracy functions. They apparently were accepting of the principle that the government exists to serve the people and will generally be inclined to do the right thing. Quite likely they were mistaken in that presumption, possibly because their own self-esteem derives in part from their federal employment.
In reality, any government’s first imperative is to stay in power and it will reflexively do whatever serves that interest, no more, no less. In this case it was essential for the White House to be seen to be doing some housecleaning relating to NSA. Appoint a distinguished panel and mission is accomplished no matter what the group concludes because the findings are largely irrelevant and can be ignored or circumvented, which has been the case with the “The NSA Report.”
There should also have been more serious concern regarding the federal government possessing the ability to invade privacy at will even if certain ameliorating mechanisms are put in place to manage that capability. If government is given a tool that it can use to gain information it will use it and it will actively work around any limitations placed on its use. And then there are the political benefits derived from big government. Large programs cost many billions of dollars, involve thousands of jobs, and are frequently justified due to internal government dynamics even when they fail to perform. NSA spying as an element of the national security surveillance state is like a genie that has been let out of the bottle. There is no simple way to put it back inside and there are all too many on the outside who, for many reasons, welcome its continued presence.
It was said of the French Revolution that it ended up devouring its own children. Something similar is occurring within the United States national-security establishment, as extreme responses surface in the wake of the Charlie Hebdo massacre in Paris.
In the National Security Council (NSC) there has been serious consideration of “temporarily” eliminating visa waivers for select European countries where there are large minority Muslim populations. Currently most Europeans can travel to the United States without first obtaining a visa, leading to concerns that “home grown” European terrorists can easily enter this country, obtain weapons, and stage a Charlie Hebdo in Times Square.
The drive to “do something” is based on the White House assessment that countries like France and Belgium are unable to manage their domestic terrorism problems, potentially permitting them to spill over against targets in the United States. Discussions in the NSC regarding options to limit travel have been strongly opposed by the Department of State, which does not have the resources to begin again issuing large numbers of visas at many of its overseas posts. Foreign governments would also be seriously upset by such a move and would undoubtedly retaliate against traveling Americans.
Charlie Hebdo has also revived consideration of what to do about the possible development of more “insider” terrorism inside the United States, exemplified by the Washington Navy Yard killings in 2013 and the shooting carried out by Maj. Nidal Hasan at Fort Hood in 2009. Possible steps to take to identify individuals who are considered “high risk” from a security point of view are again being considered, though the government is reluctant to describe its deliberations in those terms, lest it be accused of profiling. Internally, however, a number of federal security and law-enforcement agencies have begun to tighten up their vetting practices for employees who were either born or have family in what are now being referred to as “conflict zones.”
The Federal Bureau of Investigation has institutionalized stricter monitoring of some employees as part of the Post-Adjudication Risk Management program, which involves more frequent and more stringent security screenings. The employees themselves are reported to be angry at the procedures they are forced to endure, as many believe—probably correctly—that inclusion in the program is both arbitrary and damaging to promotion prospects. Many of those affected are linguists or foreign-culture specialists who are critical to FBI efforts to monitor local immigrant communities in the United States. Some might even argue that the increased scrutiny is likely to produce at least a few embittered employees without necessarily enhancing national security.
Other national-security agencies have followed the FBI lead, though they have been reluctant to formalize a category of at-risk employees through creation of an actual program. Since the Washington Navy Yard incident, the use of polygraphs for many employees with access to classified information has doubled, and there has been greatly increased monitoring of internal communications. Critics of the disruption and expense involved in the search for “insiders” also note that the United States has been relatively immune from international terrorism since 9/11 precisely because American Muslims are so well assimilated, which could shift perceptibly if there develops a widespread belief that they are not trusted by the government that employs them.
The Obama administration is gloating over the recent conviction of Jeffrey Sterling in an Alexandria, Va. federal court for allegedly leaking details of a secret government program called Operation Merlin that was intended to damage Iran’s nuclear program. Attorney General Eric Holder described the verdict as “…a just and appropriate outcome. The defendant’s unauthorized disclosures of classified information compromised operations undertaken in defense of America’s national security. The disclosures placed lives at risk.”
But some serious doubts persist over whether Sterling actually did anything illegal. Sterling was charged and convicted on nine counts, seven of which pertain to the Espionage Act of 1917, which was mostly of interest to antiquarians before it was taken off the shelf and used by the George W. Bush administration and subsequently employed even more frequently by Barack Obama’s increasingly reactionary Justice Department. The Espionage Act, designed to catch and convict enemy agents during wartime, gives the prosecution considerable leeway in terms of how it defines and conducts its case. Prosecutors can cite national security as an excuse to limit what would be considered normal constitutional protections such as the right to confront one’s accuser. They can also restrict access to certain types of information on national security grounds and order investigations within the government definition of what constitutes probable cause, to include someone’s searching the internet for information that might be regarded as “suspicious.”
Prosecutors can also divide their case into separate counts to ensure success even if there is a failure to convict on some of the charges. Even though Sterling was accused of only one leak the specific counts against him included seven separate elements linked to the alleged crime. Mimicking the curious language employed by the Act itself, two of the charges include causing journalist James Risen to write a 2003 article, as well as the account of Merlin contained in his book State of War.
There have also been a number of interesting subplots during the investigative and subpoena processes that preceded the actual trial, which have played out over the course of more than five years. Sterling, who may or may not have revealed details of the secret government program, has been hailed as a whistleblower by defenders responding critically to the high level of government secrecy prevailing during the past 14 years. The government prosecutors for their part claimed that Sterling had revealed details of Operation Merlin to Risen, who in turn described the program both in detail and in extremely negative terms in State of War, which came out in 2006.
The initial interaction between government and governed involved the prosecutors attempting to force Risen to reveal his sources for Operation Merlin. Risen, who claimed only that he had multiple sources for his story, refused to do so and was prepared to go to jail. The government eventually backed off in January, declaring that it would not force Risen to testify and allowing the trial to proceed. Risen was removed from the list of potential government witnesses and the prosecution made its case based purely on circumstantial evidence.
Sterling, who had gone through established whistleblower channels in his attempt to expose the failings of Merlin by approaching the Senate Intelligence Committee in 2003, insisted that he was not the source for Risen. His defense team suggested instead that someone on the congressional staff could just as easily have leaked the information, an alternative that was not seriously considered by the government attorneys.
Once the trial started, the prosecutors focused on discrediting Sterling as a government employee, citing an alleged poor work record and history of disgruntlement that led to a claim of racial discrimination, while producing a series of witnesses who were allowed to testify from behind screens and using only their first names so they could not be identified. The prosecution then moved on to trying to prove that Operation Merlin was important, a government secret worthy of protection and one whose disclosure had done enormous damage. Among others, former National Security Adviser and Secretary of State Condoleezza Rice testified to the value of the program.
Merlin involved giving defective plans for a nuclear weapon to Iran by way of a Russian scientist who was paid more than $400,000 to serve as the principal agent for the transfer. Risen’s view, expressed in his book, was that Merlin was ill-conceived, mismanaged, and disastrous. It was “hopelessly botched, and possibly backfiring by giving the Iranians blueprints that could be useful to them if they sorted out the good information from the errors.” He called it an operation “conducted in the darkest corner of the American national security establishment.”
The government prosecutors made no effort to prove that Sterling ever actually spoke to Risen about Merlin because the evidence to support that assertion did not exist in spite of an exhaustive years-long investigation. Sterling did indeed exchange numerous phone calls and emails with Risen, many of which were monitored by the Federal Bureau of Investigation, but Merlin was not mentioned. The government claimed that Risen’s view of Merlin paralleled that of Sterling as expressed when he addressed the issue with the congressional staff, but there was no actual smoking gun. Prosecutors attempted to demonstrate that Sterling had motive, opportunity, and access. So it had to be him.
Col. Pat Lang, former head of the Defense Intelligence Agency’s clandestine program, was a consultant for the defense, though he was not called to testify. He described the outcome as a “travesty” as there was no actual evidence confirming that Sterling was a source for the book. Indeed, some of the information in Risen’s book relating to Merlin could not have been known by Sterling as he was no longer associated with the operation after mid-2000.
Jeffrey Sterling could not testify in the trial on his own behalf because he would have had to discuss the issue of the value of Operation Merlin, which is still classified, meaning he could not reveal any details about it even if they were already known through the Risen book. So he was convicted on the basis of a series of calls and emails that made him suspicious and, in the minds of the jury, guilty.
Because only witnesses who praised Merlin were allowed to be called, the government by any reasonable standard failed to prove that, in Holder’s words, Sterling had compromised an operation that was in fact “in defense of America’s national security.” Still less did the prosecution demonstrate that he had “placed lives at risk.” If there was a victory in the case it was on the side of the Obama White House, which has exceeded all previous administrations combined in terms of going after alleged leakers. Prior to Obama, there had been only three prosecutions of current or former officials for disclosing classified information. Under Obama, there have been eight, which is particularly ironic as the administration has itself been prone to leak information. There has also been considerable pressure on journalists to reveal sources, as occurred with Risen. Associated Press phone records have been seized by prosecutors and a Fox News reporter was investigated relating to criminal charges connected to classified information.
Jeffrey Sterling will be sentenced in federal court in Alexandria on April 24th and is facing up to 80 years in prison.
In high school civics classes, Americans are brought up to believe that in their nation a rule of law prevails. Justice is depicted as blind and the rules apply to everyone. All Americans will receive the same fair hearing in court or at the hands of the government. Of course the reality is that experience tells us that those who trust in impartial justice are somewhat delusional as the criminal justice and regulatory systems do not operate in a reliably mechanical fashion. Many factors determine whether a suspect actually goes to trial or whether an organization is regulated or investigated and there are a number of roadblocks along the way that influence the outcome.
One of the federal government regulatory bodies that few have heard about is the board at the United States Department of Justice’s Counterespionage Section that administers the Foreign Agents Registration Act (FARA). The original FARA was passed in 1938 just before the outbreak of war in Europe and was intended to monitor the activities of front organizations being directed by the German and Italian governments. From its inception FARA was politicized and selective. Rome and Berlin were potential enemies while the extremely active British government efforts to draw the United States into what eventually became a European and then a world war were largely ignored.
The original act was loosely worded to include anyone propagandizing for a foreign power but an amended version in 1966 narrowed the definition of whom would be covered to include only actual “agents of a foreign principal” working directly for a foreign government in an attempt to influence U.S. economic or political decision making. Since 1966 there have been no successful criminal prosecutions under FARA and nearly all compliance has been more-or-less voluntary. There have, however, been a number of civil cases and administrative resolutions in which the government asserted the viability of the act. In 2004, for example, Susan Lindauer, a former congressional staffer, was charged with taking payments from an Iraqi government source. Her case was finally dropped in 2009.
There are somewhat less than 2,000 foreign agents registered under the act representing more than 100 countries. Their names and their periodic financial and activities filings are accessible by the public at the FARA Unit office in Washington. Most are associated with law or lobbying firms that represent foreign governments as part of their business. Former Speaker of the House Dennis Hastert was, for a time, a registered agent for Turkey when he held that account while working for the Dickstein Shapiro law firm, which he joined after leaving congress. Former Congressman Dick Gephardt also headed a company engaged in lobbying for Turkey. Both Gephardt and Hastert were involved in lobbying Congress to oppose pending legislation calling the First World War massacre of Turkish Armenians a “genocide.”
The disadvantage of registering under FARA is that you have to disclose your sources of income and you also have to detail what you are doing on behalf of the foreign government. Organizations that do not consider that they are actually directed by a foreign government or who assess their relationship to be borderline are consequently reluctant to comply.
FARA inevitably is selective in its targeting. Agents of nations hostile to the United States are pursued with some vigor while organizations linked to powerful domestic political lobbies tend to get a pass. This has been historically true of Irish republican groups as well as of the predecessor of the powerful American Israel Public Affairs Committee (AIPAC), which was founded in 1949 as the American Zionist Council. The American Zionist Council was funded directly by the Jewish Agency for Israel. Attorney General Robert Kennedy ordered the group to register in 1962 but the death of his brother led to an intense lobbying campaign to influence his strongly pro-Israel successor Lyndon B. Johnson who obligingly instructed the Justice Department to stand down.
Since that time repeated efforts to compel AIPAC to register have failed due to White House and Justice Department unwillingness to confront the issue but a new initiative by the Israeli government might well be construed as having crossed the line in violation of FARA. In early January the Prime Minister’s Office of the Israeli government funded a joint project to be run by the government’s National Information Directorate and StandWithUS, which has been described as an “American hasbara organization.” In Hebrew the name, hasbara, means literally “public explanation” but the expression is generally applied to anyone involved in generating pro-Israeli propaganda. It is also sometimes more politely described as a program of “perception management,” a euphemism made popular by the Donald Rumsfeld Pentagon in 2004.
Israel has long been paying students as part-time bloggers or exploiting diaspora Jews as volunteers to get its message out. In 2009 the Israeli Foreign Ministry wrote to a number of pro-Israel organizations emphasizing the “importance of the internet as the new battleground for Israel’s image.” Haaretz reported in 2013 how Prime Minister Netanyahu’s office collaborated with the National Union of Israeli Students to create “semi-military covert units” at the seven national universities organized to work in situation rooms. Students use different names and IP addresses, which enable them to make multiple posts, and are paid as much as $2,000 monthly to work the online targets.
The hasbara program includes recruitment, training, Foreign Ministry-prepared information sheets, and internet alerts to potential targets. It is essentially an internet-focused “information war.” It is supported by a desktop tool called Megaphone that provided daily updates on articles appearing on the internet that are singled out for confrontation or attack. The hasbara commenters flood websites where commentary critical of Israel is observed in the belief that if something is repeated often enough in many different places it will gain credibility and create doubts regarding contrary points of view. They also can hound critics and even destroy careers in journalism. Veteran CNN reporter Jim Clancy was forced to resign last week after an exchange of tweets with hasbara over the Paris terror attacks.
The joint enterprise between the American foundation and Prime Minister Benjamin Netanyahu’s office is more of the same. It reportedly is intended to strengthen “Israeli hasbara on social media platforms,” with StandWithUs running “interactive media war rooms.” The National Information Directorate’s role will be to draft the talking points and monitor the progress of the “war.”
StandWithUs, which was founded to “educate others about Israel,” originated in Los Angeles. It now has 18 chapters in the U.S., Canada, Britain, and also in Israel. Incorporated as the Israel Emergency Alliance, StandWithUs is a 501(c)(3) organization, which means it has successfully claimed to be a tax exempt educational foundation. It is reportedly largely funded by Las Vegas multi billionaire casino magnate Sheldon Adelson, who also has been active in supporting Republican candidates perceived as particularly friendly to Israel. StandWithUs is aggressive in its defense of Israel, to include a secret program to compile critical dossiers on pro-Palestinian speakers as part of an effort to help “Israel advocates respond to and counter anti-Israel speakers who come to your campus.”
The project is ostensibly being run through the StandWithUs chapter in Israel, but it will include the training of British and American students, and the parent organization is itself American in both funding and its incorporation. As it has no other function than promoting the Israeli government point of view so as to influence decision making in the United States and in the United Kingdom. It would be a clear case where registry with FARA would be mandatory as the political direction and half the funding for the project are coming directly from the Israeli government. If StandWithUS is compelled to register under FARA it will have to reveal all its funding and its tax exempt status will presumably be revoked by the Internal Revenue Service.
And StandWithUs is far from alone. Israel is certainly entitled to make its case to the American and international audience and one might observe that it has done so extremely tenaciously and very effectively. But a number of organizations in the Israel Lobby are little more than fronts for promoting the Israeli right wing government talking points in an attempt to shape American policy, which indisputably makes them foreign agents as defined by FARA. As foreign agents, they should be subject to some supervision of and restraints on their activities and there would also be a certain transparency in terms of who they are and what they represent which just might make the media less inclined to go to them for commentary.
One suspects that the Barack Obama/Eric Holder Justice department has little stomach for going after any organization linked to Israel and that reticence is regrettable, particularly as Israel will undoubtedly be using the upcoming Netanyahu visit to ratchet up the intensity of its own campaign to convince the American public that war with Iran should be a compelling U.S. national interest. If the American public were made aware that much of the war fever is being drummed up by organizations that are actually acting as agents of a foreign government it just might make a difference in how that sales pitch is perceived. But even if that were not the case, it would not be a bad thing to observe that the United States government does indeed, at least occasionally, play by its own rules.
As has been well documented, there are a lot of folks out there who do not like Edward Snowden very much, some of whom are prepared to do something about him up to and including his summary execution. It would be simplistic to suggest that everyone so inclined is motivated by selfish interests such as concern that a lack of support for certain government programs will lead to a loss of employment and income, but job security certainly might play a role in some cases. Others might well be irritated by the possibility that certain national security positions will be disdained by the public, just as the Transportation Security Agency is regularly lampooned currently.
I personally think that at least some of those government employees who hate Snowden despise him because they actually believe that he is a traitor to the United States, that he revealed secrets that should have stayed hidden, and that his activity will diminish American national security. Some governmental critics of Snowden are almost certainly particularly incensed because he was an “insider,” an employee who went rogue and violated his pledge not to disclose classified information to those who are not permitted access to it. His crime is therefore much more grievous than that of a journalist whose job it is to expose secrets because a key part of Snowden’s job was to protect them.
Having had to sign nondisclosure agreements a number of times, I appreciate that most employees take the commitment seriously. Those who believe otherwise, that classifying information frequently is a way to avoid accountability and even to hide criminal behavior, often also think that those who reveal such information should not be punished and should be protected under existing whistleblower legislation. But that in turn raises the question of what exactly is a whistleblower.
The Whistleblower Protection Act, originally passed in 1989, is actually quite broad in its definition of what makes someone a government whistleblower and therein lies much of the problem because a good deal is subject to interpretation. It also deliberately excludes whole categories of government employees in the areas of security and national defense. The original act, which was “enhanced” by Congress in 2012 and additionally by presidential directive later in the year, blocked retaliation directed against some federal employees who revealed a crime, a failure to abide by rules and regulations, corruption, gross mismanagement, waste of government money, an abuse of authority, or a significant and identifiable danger to public health or safety.
The protection mechanism is complex, including a special counsel and two boards, but an overwhelming percentage (over 90 percent) of employees who believe they have been treated badly and appeal the process are turned down, meaning that the actual protection can sometimes appear to be more notional than real. Where revealing certain types of information is specifically forbidden by laws on the books, courts have ruled that it is not considered whistleblowing. Holders of security clearances can, for example, have their clearances revoked, which is career ending, without any effective redress. Congressional staffers constitute a large group with significant potential access to wrongdoers but they cannot whistleblow at all.
Currently the Supreme Court is hearing the case of Robert MacLean, an Air Marshal, who was fired after alerting the public to a 2003 Transportation Security Agency decision to save money by canceling Air Marshal assignments on long-haul flights that would require hotel stays. McLean regarded the move as damaging to public safety so he went to his boss, who told him to keep quiet, and to the department’s inspector general, who responded similarly. McLean leaked the information to a reporter for MSNBC and his Supreme Court case rests on the TSA having only guidelines regarding the sharing of information without any specific statute to back it up. If there had been a law against exposing TSA decisions MacLean would have had no case.
Whistleblower protection has also been undermined by the judiciary whenever the restricted information that has been revealed lacks specificity or is subjective in nature. The government might have plausibly argued in the MacLean case that the desirability of having Air Marshals on planes is a judgment call as it does not in fact necessarily make travel more secure, but for obvious reasons it chose not to do so. The fact is that most federal government employees who consider themselves to be whistleblowers are de facto or even de jure punished for their actions and few are protected. Sibel Edmonds, who among other things revealed high level corruption in the U.S. government, was fired from her job and had two gag orders put in place against her using the State Secrets Privilege to prevent her from revealing what she knew. Frustrated, she eventually did go public in an American Conservative interview in 2009.
The lack of protection for federal government whistleblowers is coupled with an understandable unwillingness to submit oneself to the criminal justice system. I hear repeatedly from former colleagues in the national security world that while Edward Snowden may have been justified in exposing the secret NSA spying program he should have limited himself to only enough information to make his case and, after moving the information to a safe location, he should have turned himself in to face the consequences. Snowden in fact took an estimated 1.7 million documents many of which had nothing to with the NSA program and then fled to China, which many still regard as an enemy of the United States in what was undoubtedly a bad public relations move. He then flew to Russia on his way to Ecuador but his U.S. passport was revoked to prevent onward travel and he remains in Moscow to this day. He would have been much better advised to go to Quito or Sao Paulo in the first place.
Snowden has stated that he is willing to return to the United States for trial if he can be guaranteed a prompt and open hearing similar to that which was afforded to whistleblower Daniel Ellsberg of Pentagon Papers fame. Ellsberg was tried in 1971 and was prepared to go to prison but avoided conviction after gross government malfeasance was demonstrated relating to the investigation preceding the trial. Snowden, who claims that he made efforts to speak with his NSA superiors before he took action, might be a bit disingenuous in his professed willingness to return home to face the music but the issue is currently moot in any event as the U.S. government has refused to cut any special deals and is insisting that it would try Snowden under the Espionage Act of 1917 which permits numerous prosecutorial shortcuts. And Snowden is right to be concerned. The handling of U.S. citizen and terrorist suspect Jose Padilla as an “enemy combatant” suggests that a little extracurricular meting out of justice might well be expected if Snowden were to surrender himself into custody. Padilla, whose actual crimes remain vague to this day, was so harshly abused in prison that it made him incompetent to stand trial. More recently, Pvt. Bradley Manning was convicted of espionage and sentenced to 35 years confinement after being held for more than three years in a military stockade.
The Manning case is not unlike the Snowden case in that the theft of classified information lacked specificity, i.e., Manning could not claim that he was addressing a specific act of illegality as he downloaded and shared an enormous dump of frequently raw classified information. Nor can Snowden make that claim in spite of the fact that his theft was much more focused since he also took so much additional material with him. That essentially means that Snowden is undeniably guilty under the Espionage Act, that he knows it, and that he might well be merely asking for some decency in the process to argue his case and salvage his reputation, which the government is clearly not inclined to guarantee. A show trial over government spying on U.S. citizens would not be welcomed by either a Democratic or Republican administration.
So even if Snowden were a completely legitimate whistleblower who perfectly fits the legal definition of what a whistleblower should and should not do, he cannot necessarily expect either fair treatment or justice. But the genie is out of the bottle. An increasing number of Americans now believe that the federal government cannot be relied upon to tell the truth. Renewed war fervor over the atrocities being committed by ISIS should not obscure the fact that most of the public understands that the policies of the past 13 years have been failures. Some federal employees would no doubt like to kill Snowden, but others surely have begun to think of the ethics of what they are doing and might someday feel compelled to take action to reveal some new illegality. But they will either have to emulate Snowden and work up an elaborate escape route or assume that they will be both vilified and treated with extreme harshness by the existing criminal justice system.
And one might well ask what great dark secrets still remain out there to be exposed? I can think of two possible targets. The first would be the NSA spying program redux, which still continues to operate under slightly modified rules and with little congressional oversight. But perhaps a much bigger story is the Senate torture report, which has already begun to fade in the collective memory. I recently waded through the 549 page summary and can only imagine what horrors the full 6,000 page text contains. More than that, I was astonished by the number and length of the redactions from the summary, making the text almost unreadable on many pages. The redactions apparently consist of details of who, what, when and where that would greatly increase both the comprehensiveness and the credibility of the document. Someone must have an unredacted version of the full text and it would be quite amazing if it were to be leaked.
Director of Central Intelligence John Brennan has convened a panel to consider Agency reorganization. The central issue is whether CIA analysts should be more operationally integrated with Clandestine Service officers, but reform might also include creating new staffs operating independently of the geographical divisions that have traditionally run the spies. China, might, for example, become a separate hybrid intelligence collection and analysis center divorced from East Asia Division.
Since its founding in 1947, the Agency has maintained a firewall between operations and analysis, though the rise to prominence of the Counterterrorism Center (CTC), as well as special staffs dedicated to counter-narcotics and nonproliferation, has broken down that barrier. CTC and the issue-oriented staffs have included not only analysts but also law-enforcement representatives from the FBI and Secret Service. In theory everything is shared, and the model is considered to be successful, fueling the drive to replicate it.
To be sure there is a cultural divide within the Agency, with ops officers frequently regarding analysts as out-of-touch eggheads while the analysts reciprocate by seeing case officers as psychopathic cowboys, but there are good practical reasons for separating analysts from spies.
When I was about to go to Europe as a CIA case officer in the 1970s, I sought a meeting with the lead analyst on European socialist and communist parties, as I knew little about the factions and players in such broadly based movements. His insights were astonishing and helped greatly in preparing me for my assignment, but there was hell to pay on both sides of the CIA bureaucracy over the breach in protocol. We persevered, but I always thought afterwards that there was some possibility that I had largely adopted his point of view, which might have distorted my own thinking when confronted by a very different reality on the ground.
Contamination of the intelligence product can develop in both directions, with the spies influencing how the analysts judge the information that they receive and the intelligence collectors in turn becoming too responsive to what the consumers want. Working closely together encourages tunnel vision, reducing the likelihood that the prevailing groupthink will be challenged, as both analysts and spies can become obsessed with secondary targets and issues. The current system provides a degree of separation and a second pair of eyes that can prevent such an occurrence.
And then there is the issue of potential politicization, which is likely where Brennan comes in. If a new center were to be focused on Iran, for example, would the analysts, who work closely with the consumers in the White House and Congress, pressure the intelligence collectors to focus on what is of interest to the politicians? Responding to consumer expectations might well mean looking only for information that supports administration or congressional perceptions.
Intelligence is basically fungible, and you can pretty much find what you want to find if you try hard enough, but it is essential to have a measure of separation built into the system to provide checks and balances against politicized judgments dominating the process.
The meticulously documented 528-page Senate Intelligence Committee report on the CIA’s secret rendition, detention, and interrogation program is remarkable for its candor. In blunt language it describes the horrors of the black site secret prisons and the efforts that were made to get terrorist suspects to talk. It effectively makes two overriding points, first that the interrogations were brutal, worse than anyone had been led to believe, and second, that they did not produce any information that might not have been developed otherwise.
Regarding oversight of the program, the report claims that the Agency deliberately misrepresented the value of the program and did not adequately brief congress on exactly what it was doing. Even a supportive President George W. Bush was not provided any details until 2006. One suspects that the Senate committee is to a certain extent hypocritically avoiding responsibility for what has become a political football. Congressmen quite likely did not want to know all the details regarding the interrogation program and some are certainly now feigning ignorance of it even if they were initially briefed. “Striking back” after 9/11 was, after all, bipartisan and there continued to be a broad national consensus on the need to “do something” about Middle Eastern terrorism up until the time when the occupation of Iraq began to go sour.
The CIA’s 136-page heavily redacted rebuttal to the Senate report chooses to ignore the brutality of the interrogation program, though current Director John Brennan has described some procedures as “abhorrent” and the Agency concedes that some “mistakes” were made. The rebuttal ignores the ethical, constitutional, and rule-of-law issues by insisting that no actual torture took place. It maintains that the activity at the black sites was effective, producing information that would not have been obtained otherwise, though Brennan is now claiming in conciliatory fashion that it is impossible to separate intelligence obtained by enhanced interrogation from other information developed from the same source without coercion, making an assessment of relative value “unknowable.”
Other Agency defenders have identified a number of suspects who were questioned successfully in enhanced fashion, including a key link that they claim eventually led to Osama bin Laden. They insist, mantra-like, that “enhanced interrogation” saved thousands of American lives. Indeed, a website they have established to argue their case is called CIASavedLives.com.
The Senate report examines those same claims but comes to the opposite conclusion, i.e. that no intelligence produced by torture was ever uniquely actionable, that all the useful information was obtainable by less coercive means. Further, at least 26 detainees were “wrongfully held” while others could not even be identified. Inexperienced contract interrogators sometimes started torturing suspects even before asking a single question, and several cooperating detainees were tortured anyway. Inept management meant that one junior officer who allowed a prisoner to die of hypothermia later received a cash reward of $2,500.
Coercive interrogation frequently also produced misleading or fabricated intelligence. Sifting through the details provided by both sides, the Senate Committee appears to win this argument, and one might note that this was also a conclusion arrived at by FBI interrogator Ali Soufani (who deplored the Agency methods) as well as by a review conducted by CIA’s own Inspector General in 2004.
The other argument being made by the CIA is that the interrogations were legal because government lawyers said that that they were so. It is similar to the “legal orders” argument made by defendants at Nuremberg and at the Tokyo war crimes tribunal, a number of whom were hanged. To my mind, no one can reasonably argue that the loathsome physical abuse detailed in the report, including beatings, repeated waterboardings, and anal penetrations referred to as “rectal hydration,” in addition to threatening family members, can conceivably be construed as anything but torture. That CIA is hanging its hat on the presumed legality of acts that are best described as loathsome or horrific is self-defeating, and no one should pay any attention to what is clearly a shoddy attempt to shift the argument.
But definitions aside there is a major flaw in the Senate investigation, namely that it is completely dependent on documents. No victims of the black sites were interviewed, while the CIA refused to allow its employees to testify. Some defenders of the Agency are consequently now objecting that the report was prepared without interviewing the participants in the process, notably the senior managers at CIA who conceived of the program and oversaw its operation. The Agency managers who were most intimately involved in the program were Directors George Tenet and Porter Goss, Deputy Director John McLaughlin, Deputy Director for Operations Jim Pavitt, Director of the Counter Terrorism Center Cofer Black, and Black’s Deputy Jose Rodriguez who later succeeded Black and then Pavitt. For the Agency defenders, this is a useful argument with considerable current resonance given the media frenzy over accounts of gang rape at several universities where the alleged rapists were tried and convicted by the press without being able to tell their side. CIA defenders claim that they would have liked to see the people most involved rebut the claims being made regarding their malfeasance.
But as usual the devil is in the details. Agency supporters assume that Tenet and company would have been able to blow enough smoke up a sufficient number of derrieres to obfuscate the charges against them. I would argue instead that the Senate should indeed have spoken to participants, but would have been better served by concentrating on the bottom of the food chain. The actual torturers should have been identified, subpoenaed, and forced to testify in detail under oath. If necessary they could have done so in alias to protect their cover. Why go to that trouble? Because it appears to me that what the Senate discovered might only be the tip of the iceberg in terms of what actually occurred, and the only way to get at the truth and come to some reconciliation over the horrors perpetrated by our government on our behalf would be to talk to the guys who were tightening the thumb screws.
Against legal advice, in 2005 Jose Rodriguez ordered destroyed the 92 interrogation videotapes that were maintained at a black prison site in Thailand. This was a federal offense that the Justice Department chose not to prosecute. Rodriguez claimed he did it to protect the identity of the interrogators but the argument is ridiculous. I have seen interrogation tapes and the interrogator is only a voice. The suspect is the focal point of the filming, not the interrogator. The tapes were destroyed one day after Sen. Carl Levin proposed an independent investigation of the interrogation program. Given that as well as the content of some internal CIA emails it is clear that the videos were destroyed to eliminate evidence of what was surely a war crime and to put paid to any prospects for criminal charges against the perpetrators.
It is also safe to assume that other records on the interrogation program were either destroyed or, more likely, never produced in the first place. The Senate report describes documentation as often “sparse and insufficient” or even “non-existent.” Anyone who has ever served in a CIA station overseas knows that stations operate on a basis of what might be described as permanent damage control. Bear in mind that nearly everything CIA does overseas is illegal. Anything that occurs that is either embarrassing or likely to produce negative fallout in Washington is culled or massaged to either make it go away or to produce a result that would be construed positively. The Senate committee noted that the interrogation program produced information that was either exaggerated or even false. That is exactly what one should expect.
The ability to selectively shape the narrative does not mean that there was not considerable pushback by Agency officers who were appalled by what was taking place. The documents reveal that many questioned the value of the program but were ignored or overruled by senior management. As early as January 2003, CIA’s director of interrogations complained that the terrible treatment of prisoners was a train wreck “waiting to happen and I intend to get the hell off the train before it happens.” He admitted to “serious reservations” regarding the program and refused to continue to be involved “in any way.” Torturing people might have been a good career move in 2003 but many of the participants in the process must have realized even back then that it could easily blow back.
So a document-driven investigation into the activities of a clandestine U.S. government organization that is accustomed to covering its tracks is only likely to discern part of the story. The other element that needs some airing is the whole issue of accountability, because without accountability the sorry episode is likely to be repeated if there is another major terrorist incident in the United States. Indeed, such a response is more than likely as Agency supporters, including most Republicans in Congress are largely unrepentant, believing as they do that exposing government torture is worse than the torture itself. Many do not appear to believe that there was anything wrong with what the CIA did. Former Vice President Dick Cheney has already said “If I had to do it all over again, I would do it.”
In an attempt to avoid the accountability issue, the Senate report summary does not actually blame anyone and does not recommend any legal action against the senior officials either at CIA or in the White House who ordered the torture. Nor are the actual torturers being held responsible for what they did. President Barack Obama, who has admitted that “We tortured some folks,” long ago decided that there would be no criminal charges ostensibly because he wanted to avoid going head-to-head over policies initiated by his predecessors in office. The White House, however, went further than that, recently seeking to block release of the report summary. When it was published the president oddly cautioned that “it is important for us not to feel too sanctimonious in retrospect about the tough job that those folks had.”
The administration also should be held to account for relentlessly hyping the danger that might result from the report’s publication, advising that American travelers overseas and diplomatic missions might be targeted, as if the parameters of the torture program have not been well known to interested parties for a number of years. The assertion that its release would damage relationships with foreign intelligence services was also dutifully trotted out, a specious claim that has been re-issued after every intelligence flap or breach since 1975, when the Church Committee met and rogue Agency case officer Philip Agee wrote Inside the Company: A CIA Diary. Intelligence agencies do not share information because they like each other. They do it because it is an essential part of doing business.
So if there is a problem with the Senate report it is that it is incomplete. Someone should have made greater efforts to interview the actual victims, as well as the torturers and the bureaucrats who sent them on their merry way, in order to find out what was not contained in the six million pages of documents examined. The perpetrators and enablers of “enhanced interrogation” must be held accountable for what they did, and the United States government, collectively speaking, should admit in plain language that torture was indeed what took place and that it was and is unacceptable. Wrongfully detained Canadian citizen Maher Arar, who was “rendered” to Syria and tortured, observes that “Torture does not tell you anything about the person being tortured but tells you volumes about the person who’s doing the torture.”
The Declaration of Independence and Constitution established the principle that the United States would behave as a moral country in which citizens have inherent rights. One fundamental right is the expectation that the government will behave lawfully and fairly. The Declaration of Independence also acknowledges “a decent respect for the opinions of mankind.” If the United States is ever to regain its honorable place among nations it must completely and unambiguously acknowledge what occurred between 2002 and 2007, and it must take steps to ensure that such depravity never takes place again.
Back in the good old days of the Cold War, the Central Intelligence Agency (CIA) would do whatever it could to discredit the Soviet Union. We used to place articles in friendly newspapers exposing Soviet human rights violations, arrange for Russian front companies to buy technology that had been tampered with so that it would damage assembly lines when put into place, and send money and samizdat publications to groups like Solidarity that were opposing the communists. But there was a real war going on, even if it was tepid, and because the two sides were in dead earnest it was anything goes and more was always better.
Today, more than 20 years after the collapse of the Soviet Union, there are many indications that Washington is slipping into a new and completely unnecessary confrontation with Moscow, only this time it is not being run largely out of sight by the CIA. Much of the new conflict is being conducted openly, with sanctions and resolutions by Congress, regular appearances in unstable regions overseas by senior state department officials and politicians, and trainings in new media political organizing funded by quasi non-governmental organizations like the National Endowment for Democracy (NED).
This is not to suggest that there is not a covert side to it all. The funding and training of opposition groups frequently take place outside of the country being targeted, meaning that the players and their sources of income are carefully hidden from sight. The actual training and organizing are frequently carried out by a private contractor rather than any agency linked to the U.S. government, increasing the plausible deniability of an official connection.
And much intergovernmental activity and links to important corporate components in the private sector are often arranged with a wink and a nod, without leaving any paper trail and avoiding any downstream accountability. That is exactly how $5 billion of U.S. taxpayer-provided money has been wasted on developing what passes for pluralistic democracy in Ukraine but might more properly be described as “regime change.” Such overt interference in other countries’ internal politics also explains why governments in Cairo, Moscow, and elsewhere have forced a number of foreign consultants working locally on NED’s dime to go home.
The rights and wrongs of Russian policy towards Ukraine have been discussed ad nauseam in The American Conservative as well as virtually every other forum dedicated to foreign and security policy. Let it suffice to say that Moscow has definite security concerns relating to ongoing NATO expansion, particularly the most recent ham-handed attempts to bring Kiev into the “Western” fold. It has as well strong historical and national defense related ties to Crimea. Even if one believes that Vladimir Putin is evil incarnate and seeks to reacquire Eastern Europe, one must concede that the argument over what is taking place should not be reduced to bumper sticker slogans. Unfortunately that is precisely what the United States Congress and to a lesser extent the White House are seeking to do.
Former Congressman Ron Paul of Texas has noted some of the overt maneuverings taking place to heighten tension with Moscow. He is particularly scathing regarding the U.S. House Resolution 758, entitled “Strongly condemning the actions of the Russian Federation, under President Vladimir Putin, which has carried out a policy of aggression against neighboring countries aimed at political and economic domination,” which was passed on December 4th just before Congress recessed for Christmas. There were only ten votes opposed to the motion.
Paul describes the bill as “16 pages of war propaganda that should have made even neocons blush, if they were capable of such a thing” and observes that the resolution might provoke “a war with Russia that could result in total destruction.” H.R. 758 condemns Russia for invading Ukraine without producing a shred of evidence that that is what took place, blames Moscow for shooting down MH-17, condemns the selling of arms to the Syrian government, accuses Russia of invading Georgia in 2008, and claims Moscow “illicitly acquir[ed] information” about the U.S. government through computer hacking while also “distorting public opinion” through its controlled media outlets. The resolution urges Ukrainian President Petro Poroshenko to disarm separatist rebels in the country’s eastern provinces and calls on President Barack Obama to provide the Ukrainians with weapons and training to that end, meaning that American soldiers might well be on the front line of what is generally regarded as a civil war.
In response to those who might ask why the United States is getting involved at all, the resolution affirms that it is because Russian involvement in the Ukraine “poses a threat to international peace and security.” As Ron Paul notes, seldom have there been so many lies, half-truths and distortions packed into one House Resolution. Indeed, many of the accusations being made regarding Moscow’s alleged bad behavior could more credibly be leveled against Washington.
As bad as the openly promoted war against Moscow is, there is also a secret conflict that some have referred to as a “stealth war.” It has been described as “an attack on the international market for Russian corporations, and on the international currency and security clearance systems on which the market depends.”
To that end, there have been some reports suggesting that the United States Treasury Department has been discreetly putting pressure on major European lenders to urge them to avoid acquiring Russian equity or debt because such transactions are currently legal but might become illegal with a new round of tightened sanctions, making Moscow a very bad risk, financially speaking. Whether a tightening of sanctions is likely or not is largely irrelevant as financial institutions are risk averse and any warning of potential problems produces an instant retrenchment. A Lloyds Banking group withdrawal from a refinance involving Russian oil conglomerate Rosneft in May has been attributed to U.S. pressure.
Russia’s economy is indeed struggling, partly due to sanctions, but more due to the fall in the price of oil. Russia considers existing sanctions to be illegal but has so far failed to take steps against them. It is, however, likely that if sanctions are strengthened there will be litigation over breaches of contract, which would hurt all parties involved and only benefit a handful of international law firms.
More to the point, sanctions will not change Russian policy, because for Moscow Ukraine is a vital interest, and using them as a sword of Damocles style threat, as Secretary of State Kerry has done, is only likely to poison the atmosphere, making genuine rapprochement unobtainable. The United States has a great deal to lose if Russia chooses to go tit-for-tat in responding to both the overt and secretive attacks on its economy. Moscow has been cooperative with both Washington and the Europeans regarding tracking the financing of terrorist groups, proliferators, and drug cartels. It will be unlikely to continue that cooperation if it perceives a Western willingness to act against its own financial institutions and economy. It could even revert to its pre-2003 standard operating procedure of looking the other way when criminal proceeds were deposited in its banks, which made it at that time a haven for money laundering.
Moscow has also cooperated politically over how to deal with Syria, Iran, and North Korea. Russia could unilaterally break sanctions on oil purchases from Tehran and start selling weapons to Damascus, including up to date air defenses that could bring down U.S. warplanes. It could ease restrictions on trade with North Korea. At the United Nations, it might use its veto selectively to impede American-backed initiatives.
Using both open and hidden initiatives to push Russia into a corner from which it cannot escape is not good policy. As Ron Paul has noted, to do so is to invite war. And there are historical analogies that demonstrate what might develop. Trade embargoes and restrictions on oil sales to Japan in 1940-1941 contributed both to Tokyo’s expansion in Asia in search of alternative resources and eventually led to Pearl Harbor. It is not wise to provoke a powerful enemy unless a vital national interest is at stake, which is not the case with Ukraine and Crimea.
The ire directed at Russia by both Congress and the White House, ably assisted by the mainstream media, is irrational, and official Washington should reconsider the error of its ways and step back before it creates a situation that will be disastrous for all parties involved.
Running an empire is not cheap.
The revelation that Navy Secretary Ray Mabus has run up $4.7 million in travel expenses, over 930,000 miles, and a total of 373 days on the road in his five years in office should not surprise anyone, until one realizes that the numbers conceal as much as they reveal. As the Secretary travels by military aircraft and naval vessels, the cost of getting from point A to point B is not included, nor are a lot of the related staffing expenses as they are taken care of by Defense Department personnel who would be getting paid anyway.
Even with those sunk costs, however, managing visitors nevertheless compromises the ability of the local mission or command to carry out its normal duties. In my experience, the visit of a senior bureaucrat, a congressional delegation, or a high-ranking military officer overseas is both a money pit and a time-waster as it invariably requires weeks of preparation prior to the arrival of the potentate.
Congressmen are notorious for their worldwide travel as part of “Congressional Delegations” (CODELs), which are intended to be both “fact-finding” and “educational.” Most CODEL visits not surprisingly occur in the summer when Congress is in recess, and sometimes lack seriousness or even any recognizable agenda. Sixteen congressmen traveled to Rome in March to attend the installation of Pope Francis at a cost of $63,000, a relatively small expense by government standards, but nevertheless a gesture that should have been paid for either through a private foundation or by the congressmen themselves.
America’s legislators are also prone to travel with their families and staffs in tow, particularly when the destination is desirable. Phony agendas are frequently contrived with the cooperation of the local U.S. Embassies to permit the government to plausibly pay for the supernumeraries. This includes spouses attending the opening of a school or visiting a hospital. Generally speaking, a meeting with local officials during a CODEL is sufficient to justify the trip. That is the “fact finding” part and the rest is “educational.” CODELs traditionally traveled VIP on military aircraft to many destinations, but new post-sequester regulations now require them to travel on commercial carriers. By claiming that they have to work immediately upon arrival in a foreign destination they are able to upgrade to Business Class.
Congressmen and staffers frequently also benefit from trips arranged by lobbyists, interest groups, or even foreign governments. Sen. John McCain’s frequent maladroit appearances in international hot spots are often privately funded. In a notorious case recounted in the Washington Post, “About a dozen congressional staffers flew business class on a trip to China last summer  and stayed at luxury hotels while touring the Great Wall and the Forbidden City and receiving a ‘briefing on ancient artifacts and dynasties’ at the Shanghai Museum. The all-expenses-paid visit came courtesy of China.”
And some other senior officials are even less inclined to stay at home. Hillary Clinton logged almost one million miles while visiting 111 countries during her tenure as secretary of state, and John Kerry will likely easily surpass that record having visited 51 countries and totaled over 520,000 air miles in his first year alone.
Secretaries of state travel on a specially equipped Boeing 757 and have many of the security and communications add-ons that accompany the president, including advanced Secret Service teams and supporting aircraft to carry journalists and staff. But at least Clinton and Kerry had a good excuse for their peripatetic ways: dealing with foreigners is in their job description. As for the actual costs of all the travel, those remain a state secret and would probably be misleading even if an attempt were made to break them down. As the aircraft, crew, security details, and communications staff are supplied by the government and are paid for whether they are being used or not, it is difficult to separate out discretionary costs. Hotels, meals, and entertainment expenses have not been made public for such official travel and are not accessible through the Freedom of Information Act.
Perhaps not surprisingly the greatest abuse of the taxpayer-funded travel privilege comes from the White House, which routinely under both Republicans and Democrats mixes “official” trips with fundraisers and other activities that are strictly partisan politics in a deliberate attempt to have a nod to government business pay for the politicking. President Barack Obama is indeed the “most well-traveled” president in U.S. history and also the most expensive.
The Democratic National Committee is supposed to reimburse the government for any costs that relate to electioneering or fundraising, but Obama, like his predecessors and contrary to his pledges of “transparency in government,” has refused to reveal just how much that amounts to. It is to be presumed that infrastructure costs including $228,000 per hour for Air Force One alone are considered to be a fixed expense, as is security and ground transportation, which all suggests that the actual reimbursement might well be more notional than real, meaning that it would be embarrassing to actually reveal how little it is.
Watchdog group estimates of Obama travel, including more than $7 million spent on vacations to Hawaii and Martha’s Vineyard and an appearance on the Jay Leno show in 2013, run to over $44 million. A 13-hour cameo appearance at the Nelson Mandela funeral cost $11 million and included a bill for 127 hotel rooms.
Estimates for presidential travel costs should be considered to be minimalist as many actual expenses are picked up in other ways, including the White House operating budget, or are not included. And First Lady Michelle is also on the government dime when she travels separately. A recent “non-political” trip to China had her staying at the Westin Hotel at $8,400 per night, a suite that had been considered unacceptable for an earlier visit by Vice President Joe Biden because it was too expensive.
What arguments are made for all the traveling and the expense that is involved, a phenomenon that is unique to the U.S. government? The president represents the country in international fora and while one might disagree with the rationalizations for some of the travel, few would dispute that it is generally speaking a necessary evil. What is not necessary is the imperial entourage that accompanies the president, reported to be for some trips a second 747 for the media and other guests, three cargo planes, a total of 900 fellow travelers and staff, and a supply of armored vehicles.
For travelers from the intelligence and defense establishments there is an understanding that being briefed in Washington is not the same as visiting a field operation and seeing how things function first hand. The only problem with that argument is that the visits of senior officials and military officers are carefully orchestrated and prepared, meaning that the insights gained are carefully managed and pretty much identical to those that would be obtained from a briefer back at home without being able to look out the window and see sand dunes.
It is also sometimes argued that a visit to the field allows senior management to mix with lower ranks to obtain their views and insights, but in my 20 years of experience in government I never witnessed a situation in which congressmen or flag officers were allowed to mingle with the lower rank and file unsupervised. Secretary Mabus indeed describes a chance encounter with a junior officer in Hawaii during which she vented about her career prospects because she could not serve on a submarine. Mabus changed the rules to permit her to serve underwater, but citing the conversation as justifying his travel to Honolulu is in reality a thin justification for a lot of unnecessary expense.
A more persuasive argument is that in the context of American empire it is desirable to visit the client states to convince the local allies that they are truly respected and loved by the Mandarins in Washington. That argument has some cogency as I can recall visits to overseas posts by Congressional Delegations and senior bureaucrats that largely consisted of series of briefings and social gatherings intended not necessarily to educate or inform but rather to reinforce the bond between the two nations. It is of course difficult to calculate how much such contact is worth and impossible to say whether it is justified at a time of government-wide fiscal restraint.
What is certain is that no foreign legislature enables its elected officials to travel as intensively as the U.S. Congress. And no head of state costs as much as President Obama.
The wheels up party is a venerable CIA tradition, normally celebrated at overseas stations when a particularly incompetent Chief of Station or a hostile ambassador was in the process of permanently leaving post. The drinking would begin at a time estimated to coincide with the moment when the dearly departed’s aircraft lifted off from the tarmac on its way to Washington.
Wheels ups are rarer at CIA headquarters in Langley, Va., though celebrations were reported when Ronald Reagan defeated Jimmy Carter in 1980; but as a number of senior officers in the Agency actually had a hand in that development, there was probably a measure of self-congratulation at a job well done.
One might well imagine that the partying began at Langley shortly after the polls closed last Tuesday, as soon as it became clear that there would be a GOP Senate majority. More to the point, Sen. Dianne Feinstein would be performing her own wheels up, relinquishing her position as Select Committee on Intelligence (SSCI) chair to be replaced by the little known Richard Burr of North Carolina. Burr is regarded by the Agency as a good friend, someone who had already staked out a position in favor of protecting government secrecy, stating “I personally don’t believe that anything that goes on in the intelligence committee should ever be discussed publicly.” He also basically supports the CIA position that torture produced information critical to the killing of Osama bin Laden, commenting that “The information that eventually led us to this compound was the direct result of enhanced interrogations…” Burr is regarded as a right-wing conservative and has earned the ultimate accolade of a zero rating from the American Civil Liberties Union.
Now some might argue that Feinstein herself did her best to preserve the executive branch’s right to assassinate Americans overseas, to spy secretly, set up black site prisons and to engage in other activities that are best not discussed in polite company. Many of these activities were carried out by the CIA, but Feinstein did draw the line at torture, which is one of the few illegal acts that the Obama administration credibly claims to be against, placing Feinstein on safe ground bureaucratically speaking. She only turned against the Agency when she learned that it had had the temerity to spy on the activity of her own committee.
In a recent speech made before the midterms, election Director of National Intelligence, James Clapper expressed his confidence that congressional moves to rein in National Security Agency spying had pretty much lost momentum. With Republicans now firmly in charge, remaining watered down measures are likely to die in committee.
And given the post electoral euphoria, does anyone inside the Beltway even remember the passionate debate over the SSCI report on CIA torture? The hotly contested issue of when or how to release the report, or sections of it, to the public is now as dead as the proverbial dodo—even if some heavily redacted version of the report summary does somehow emerge, particularly as the White House has effectively distanced itself from the entire process. The meticulously researched Senate report, covering 6,700 pages and including 35,000 footnotes, apparently concluded that torturing terrorist suspects was not only illegal under the United Nations Convention on Torture, to which Washington is a signatory; it was also ineffective, producing no actionable intelligence that was otherwise unobtainable. The CIA is reportedly working on a rebuttal maintaining that the extreme measures were effective and has also been blocking “naming names” in the final document based on cover and other security concerns.
Since a “forgive and forget” forward-looking White House has already indicated that no one will ever be punished for illegal actions undertaken in the wake of 9/11, why is the torture issue important beyond the prima facie case that a war crime that was authorized by the highest levels of the federal government?
It is important because of its constitutional implications and its contravention of the principle of rule of law in the United States. The constitutional issue, in its simplest terms, is that the CIA works for the president, and when it operates without legally mandated oversight by the executive branch and judiciary, it makes the Agency little better than a secret army run by the POTUS.
Even conceding that Feinstein might have been proceeding with the best interests of the country in mind, the past 24 months of delay in the report’s release have demonstrated that the intel community, with the support of the White House, can stonewall any issue until the cows come home.
It has been suggested that the Agency is trying to avoid the inclusion in any released summaries any blame or suggestion of “mission failure” which would potentially affect budgets and broader Agency political interests, but some of us who were once in CIA suspect that the report includes information that might be much more damaging, to include really nasty details, possibly identifying many more deaths under interrogation than have been previously admitted. Former CIA General Counsel John Rizzo has suggested in a recent interview that some “lethal” proposals for retaliatory action made post 9/11 were “chilling,” though he refused to describe them in any detail. When Feinstein was railing at the Agency stonewalling there was genuine concern at Langley that a new Church Commission going through the CIA’s dirty laundry might well be the result, leading to more legal restrictions on clandestine activity.
So the downfall of the Democrats did indeed provide cause for celebration. If the Dom Perignon was flowing on the seventh floor at CIA Headquarters and its counterparts working for Clapper, it is partly because they had obtained a get out of jail free card. But more important, they now also have every expectation of seeing recent budget cuts linked to drawdowns in Iraq and Afghanistan reversed and possibly even go the other way. Currently $67.9 billion is spent on civilian and military spying, down 15 percent since 2010, but Burr is on record as favoring more spending on defense, and as much of the intelligence budget is rolled into the massive Pentagon bill one hand will likely be washing the other, as the Italians would put it.
The grounds for such a reversal of fortune has been well prepared by the intelligence community’s persistent overhyping of what Clapper refers to as a “perfect storm” of “diverse” threats currently confronting the United States, most notably ISIS and associated groups together with the manufactured crisis in Ukraine. And it comes at the time when the government’s bete noire Edward Snowden has weakened the capability to strike back. The White House and mainstream media have taken their lead from the intelligence community, convincing the public that radical Islam and Moscow are at it again, requiring a return to post-9/11 thinking. All of which means that the gravy train has again arrived at Washington’s Union Station.
What goes on in Washington committees would be comic opera or even institutionalized buffoonery but for the fact that there are real world consequences. If torture is not discredited as a tool for national security it will undoubtedly be used again in the wake of another terrorist attack, further damaging U.S. credibility and inevitably distancing Washington from its actual and potential allies. The Republican effort to scuttle negotiations with Iran might also feature an intelligence sidebar. Incoming House Intelligence Committee Chairman Devin Nunes has already announced his intention to look into any involvement of the Agency in secret negotiations with Iran being conducted by the White House. He wants to discredit the process by claiming that the intelligence role had not been acknowledged in oversight briefings before his committee, suggesting that the Obama administration was covering up and is heading towards a bad deal with Tehran.
And so it goes. Feeble congressional attempts to rein in and establish some accountability relating to the out-of-control intelligence community are now dead. Worse still, the likely acceptance of a GOP perception that the United States is experiencing a national security failure as it confronts a broad array of intractable foreign threats fits in neatly with the Clapper warning about a “perfect storm.” Budgets will rise and concerns over extraordinary measures being used to confront the menace will be placed on the back burner. How long will it be before we again start referring to the “global war on terror?”
Let’s forget about the GOP “hypotheticals” that Hamas militants will deliberately infect themselves with Ebola and sneak into the U.S. from Mexico to wreak havoc. Or that gay soldiers getting “massages all day” will make them less able to perform adequately in West Africa and against terrorists. Or even the suggestion that if Mitt Romney were president we wouldn’t have an Ebola problem.
The more serious issue is what to do about the disease now that it is here, and the seemingly willful ignorance coming out of the administration borders on caricature. On Friday October 17th, White House spokesman Josh Earnest observed that “Putting in place a travel ban could have a pretty perverse effect on people who are seeking to travel to this country.”
The debate over what to do about Ebola has demonstrated that even high government officials don’t have a clue regarding how the U.S. immigration system actually works and what can be done reasonably to reduce the likelihood of infected travelers entering our country. President Obama has argued that “We can’t just cut ourselves off from West Africa,” while refusing to ban travelers from the region. Obama doesn’t quite get it, as no one reputable is demanding “cutting off” from West Africa, though many serious observers would like to see the travel of possibly infected visitors suspended until the health crisis passes. Health-care workers and aid agencies would still be able to enter the countries in question on available flights and using chartered and military aircraft.
So in truth, carefully managing travel of visitors from an area where there is an epidemic is not the same as trying to “seal off an entire region of the world” as the president chooses to describe it. Having worked the visa line in various overseas diplomatic assignments, I think I have a good understanding of what can be done very simply to modify an immigration policy in response to an epidemic overseas.
While the State Department issues the actual visas for travel, it is the U.S. Customs and Border Protection Service (CBP), part of the Department of Homeland Security, that handles the actual entry of returning American citizens, temporary visitors, and foreigners who expect to reside in the United States. A foreign traveler arriving at a U.S. airport seeking to enter the United States is first confronted by a CBP official who confirms that the visitor has the proper documentation to enter the country. There is then a stop at customs, also part of Homeland Security, before actually entering the United States. Any American citizen who has traveled outside the U.S. and then returns is also familiar with the procedure.
The three neighboring countries in Africa that have become the epicenter of the Ebola contagion are Sierra Leone, Guinea, and Liberia. Any citizen of those countries traveling on that country’s passport needs a U.S. visa to enter the United States. Currently 150 travelers from those countries are arriving daily in the United States, which means nearly 5,000 visitors a month. There are also a reported 13,000 visas that have been issued and not yet used. Liberian citizen Thomas Duncan, who died in Dallas, arrived on a visitor’s visa.
Visas are approved and issued by Foreign Service Officers serving in the Consular Sections of U.S. Embassies and Consulates. There is a whole alphabet soup of different kinds of visas, including “Diversity” visas handed out by lottery, but the most common type, the B-2, is issued for temporary tourist travel to the U.S. under the assumption that the visitor will be returning home, normally within 90 days. U.S. immigration law requires that that determination be made and the State Department guideline notes that “Visa applicants must qualify on the basis of the applicant’s residence and ties abroad, rather than assurances from U.S. family and friends.” While State Department officers frequently make judgment calls and some are regarded as particularly sympathetic and therefore highly sought after by the local visa seekers, few would jeopardize their own careers by giving a visa to someone whose desire to return home is problematical.
As the American visa officer is supposed to establish to his or her own satisfaction that the traveler has connections with his or her own country, usually consisting of a job, property, or family that would mandate his or her return, the processing of Duncan, a driver for a cargo company with a girlfriend, sister, and son in the U.S., should have raised some concerns about his intentions. Duncan in fact quit his job shortly before departing for the U.S., but that is something the Embassy visa section would not have known. As the State Department is not revealing how the decision to let Duncan enter was made, one has to assume that he somehow demonstrated his viability as a temporary visitor who intended to return to Liberia before his visa expired.
The case of Duncan aside, the local embassy has considerable discretion in issuing a visa. But even though limiting travel from an area where there is an epidemic of an often fatal illness could certainly be construed as grounds for denying a visa, such a blanket decision would have to come from Washington. And it would have to overcome an in-built bias in a system intended to serve U.S. interests abroad, but which frequently leans over backwards to cater to the local constituency. For example, the Freetown Embassy somewhat oddly refers to Sierra Leoneans as its “clientele.”
As the White House is opposed to any travel restrictions, the embassies in question are continuing to approve and issue visitor visas as if nothing is happening, though the Monrovia, Liberia Embassy website indicates that there is an Ebola symptoms screening carried out by local contract guards before applicants are allowed to meet an American officer. There are no special security arrangements in place in Freetown, Sierra Leone and Conakry, Guinea.
Because the unavailability of visas would constrain most travelers, the arguments being made by some in the government and media that a travel ban would require halting flights that go to the three countries and would thus amount to an externally imposed blockade are essentially false. If the intention is to reduce the flow of possibly infected visitors from entering the United States, all that is necessary for most travelers is to stop issuing visas and to suspend the visas that have already been issued but not yet used. That would block most of the potentially infected.
As the propagation of any communicable disease is inevitably a numbers game, the fewer infected travelers that actually enter to the U.S. mean fewer Americans will get infected in turn. And the apparently only semi-prepared U.S. medical system will avoid being overwhelmed by the situation. No one is denying that Ebola will find some way to our shores in any event, but reducing the numbers coming in is critical to isolating and containing the virus. Stopping the issuance of new visas and suspending those already issued would have a dramatic impact.
Some have argued that many West Africans have second passports issued in Western Europe or even the United States and they would be able to travel without visas, connecting through airports in Europe or North Africa. This is because most European countries are in the visa waiver program which means their citizens can travel to the U.S. freely while their governments offer reciprocity to American travelers. This is true enough, but flight manifests, which can be requested by the Department of Homeland Security from the relevant carriers, would reveal where the travel originated and measures already in place for the health screening of those relatively few individuals can either be continued or strengthened. In this case the problem is relatively simple as only two carriers operate between all three of the affected countries and other airports that in turn connect to the U.S. They are Brussels Airlines and Royal Air Maroc. Air France has flights to Conakry.
The point being made here is that there should be some control over who enters the United States when crisis situations develop overseas without the issue becoming a political football. Restricting visas in this case means lessening the number of potentially infected travelers coming from a region where there is a virus epidemic that kills 70 percent of those who acquire it. Such action will inevitably lessen the number of people on this end who might come down with the disease.
That such a simple step is either not appreciated, possibly not understood, or perhaps is being resisted for political reasons by the federal government could have tragic consequences.
The White House strategy to “destroy” ISIS, the self-declared Islamic State in Iraq and Syria, depends in part on a vague plan to support moderate elements in the opposition to Syrian leader Bashar al-Assad, presumably to serve as boots on the ground to complete the job started through aerial attacks provided by U.S.-led coalition forces.
Ironically, President Obama in embracing such an approach contradicts his own assertion, made two months ago, that arming Syria’s pro-democracy opposition has always been a “fantasy.” Unfortunately, it is still a fantasy and the competition to find the good insurgents has led to some sharp exchanges between two Republican senators.
Sens. John McCain and Rand Paul have been trading barbs relating to a visit made by McCain last May to meet with Syrian rebels. The meeting included a photo op with the Northern Storm Brigade, a group then receiving U.S. assistance even though little was known about the organization or its leaders.
Paul has claimed somewhat hyperbolically that McCain met with ISIS, a charge that both the senator from Arizona and the mainstream media have sought to dismiss, but it now appears that the Northern Storm Brigade was the organization that sold American journalist Steven Sotloff to ISIS. Sotloff was subsequently beheaded.
John McCain may have been guilty of a ridiculous publicity stunt, but he certainly did not knowingly meet with a terrorist-affiliated group. Yet the fact that he did appear with these rebels—presumably after receiving the imprimatur of whomever from the intelligence or spec-ops community was managing ground operations in Syria from the U.S. perspective—demonstrates just how murky the whole Syrian enterprise has become. Shifting loyalties are certainly the norm, and by all accounts groups like the Northern Storm Brigade are ideologically fuzzy opportunists who are in the game for themselves and whatever they might get out of the continuing anarchy. It and similar groups might well constitute the majority of the “moderate rebels” that the president is hoping to mobilize.
Amidst all the confusion, the intelligence community is particularly concerned lest it again be scapegoated by policymakers who want it to do the impossible. There are a handful of CIA and military operational officers on the ground in Syria and Iraq, but they lack the resources to track insurgents or to categorize their political leanings as good or bad, particularly as third-country volunteers continue to flow into the most extreme organizations worldwide. To a limited extent earlier in Iraq, and subsequently much more in Afghanistan, it was possible to track local residents using biometrics, a necessary expedient because it was and is far too easy to change one’s name and obtain false documents in the region. The biometrics program was so widespread that at one point it was suggested that most of the Afghan male population over the age of 14 might eventually be entered into a database. But that could be aspired to only because coalition forces controlled the ground, meaning that they could establish technical registration points and incorporate the information into something like public records.
No such control over the environment exists in the affected regions of Iraq and Syria, meaning that telling friends from enemies is largely guesswork.
Should America’s law enforcement and the intelligence agencies have the ability to read other people’s mail or listen in on their phone calls? Or, more to the point, since we live in a nation where the rule of law and constitutional liberties allegedly prevail, do they have any legal right to do so given the Fourth Amendment of the U.S. Constitution’s ban on searches without judicial sanction derived from probable cause and, if so, under what circumstances?
The question of whether they can do it technically, and whether they should be given either blanket or conditional authority to obtain such information in connection with ongoing investigations inevitably raises yet another question—do they actually need to have the capability and access to protect the country, or is it only another weapon that they would like to have in their arsenal just to have it available?
The Obama administration is currently confronting a number of information technology companies over their plans to develop and commercially market end-to-end encryption technologies to create client communications systems and eventually databases that cannot be routinely accessed by the government using what is referred to as a backdoor or key. Indeed, such encryption systems cannot normally be accessed by anyone at all but the users. Google and Apple have already announced that encryption will be an integral part of their upcoming products and services in an effort to guarantee client confidentiality.
To be sure, the action by the Internet and telecommunications giants is not motivated either by noblesse oblige or by any actual desire to protect customers from the government. The Edward Snowden revelations about U.S. government spying have made many potential foreign clients in Asia and Europe wary about purchasing systems or products from U.S. based companies that they know will allow access to the National Security Agency (NSA) and other American spy agencies. Concerns have been expressed that U.S. technology companies are unable to protect their clients’ data.
If the NSA spying had truly been limited to international terrorism cases in which a warrant was duly obtained, Washington might well have been given a pass on its behavior, but it is now clear that much of the snooping was both warrantless and speculative, having little or nothing to do with terrorists. The Washington law enforcement and intelligence community have been unable to cite a single credible counterterrorism case reliant on NSA spying that could not have been developed by other means.
As a consequence of the Snowden reports, several countries in Europe and Asia are considering legislation that would effectively nationalize the Internet, requiring data from all communications initiated or received by local residents to be stored in retrievable databases within the national borders. If such legislation gains momentum it would effectively destroy the internet as a transnational information resource and it could stimulate the rise of national telecommunications companies at the expense of the American firms the currently dominate the industry.
America’s telecommunications and internet giants operate globally, so the stakes are high, potentially tens or even hundreds of billions of dollars in sales and tens of thousands of U.S. jobs. There is every indication that Apple and Google, likely to be joined by Microsoft and Facebook, will not readily submit to any White House mandates.
The administration’s response has been to touch all the available hot buttons. From the law enforcement side, FBI Director James Comey claims that encrypted communications will allow “people to place themselves beyond the law” while the chief of detectives in Chicago has opined that “Apple will become the phone of choice for the pedophile.” District of Columbia Chief Cathy Lanier claims Smartphones are “going to be the preferred method of the pedophile and the criminal” while former FBI Counsel Andrew Weissman also piled on the scrum claiming that “They have created a system that is a free-for-all for criminals.” Weissman then suggested new laws to stop the practice, a proposal jumped on in a Washington Post editorial recommending the development of a mandatory “secure golden key” for law enforcement. But it was up to attorney General Eric Holder to ice the cake: “When a child is in danger, law enforcement needs to be able to take every legally available step…it is worrisome to see companies thwarting our ability to do so.”
It is just possible that the advocates of readily available government intrusion are sincere in their protests, but the facts regarding the straw men that they raise suggest something quite different. There were only nine reported cases of encrypted phones interfering with official investigations in 2013 and in all nine cases the investigation proceeded anyway using other means to include old fashioned meticulous on-the-street police work.
To be sure, many new technologies can be exploited for criminal activity but the Jeremiahs are most often wrong when they assume that the sky is falling. The automobile was once seen as a boon for bank robbers. Commercial encryption systems have long been on the market, but it is not exactly a business that has broken through to the individual consumer. Most encryption is currently done by the financial services industry, as well as by the government at federal, state, and local levels. If criminals had wanted to hide their phone calls, they would have been able to do so already.
The other issue that is being raised privately in government meetings is the intelligence stake in the controversy. To be sure, the agencies that operate overseas—primarily the NSA, Central Intelligence Agency (CIA), and military intelligence—work in a largely self-defined environment where rules and laws applicable in the United States are to a certain extent irrelevant. The NSA, which can break sophisticated foreign government encryption, can undoubtedly figure out how to defeat the systems being used by Apple and Google or by any other commercially developed security provider. Apple phones must, after all, communicate, requiring some measure of transparency and a comprehensible product at both ends of the chain which can be attacked.
The CIA and America’s military spies likewise tend to run technical operations overseas at source, meaning that their intelligence collection uses hidden microphones and similar devices where the communication is being produced or received, defeating encryption.
Terrorist groups in the 1990s and afterwards, when the so-called crypto wars began, did indeed use encryption systems, but they were broken by various governments, most notably the U.S., Britain, and Russia. They now rely on couriers and over-the-counter phones that are used once and discarded to communicate. Osama bin Laden’s couriers did indeed rely on cell phones but only when they were miles away from his place of refuge. Calls were placed to cutout numbers that were changed regularly and the instruments themselves were destroyed after use.
So the potential impact of phone encryption on the pursuit of genuine terrorism cases will be minimal, but to return to the initial questions, the answers would appear to be fairly straightforward. The United States certainly has the technical ability to penetrate encryption systems if given enough incentive to do so even if it does not have a key to make such access effortless. Whether it has a legal or constitutional right to invade privacy without a legal process as it did in the NSA spying, the answer ought to be “no.” With a warrant based on probable cause, the answer would have to be “yes” though with caveats to make such investigations specific and narrowly focused on actual presumption of criminal behavior. In defense of customer privacy, there is currently no legal reason why a company cannot structure itself in a way to make it unable to provide information sought after by the government, as Apple is doing. That should continue to be the case, barring any legislative action by Congress which, unfortunately, might well be emulated by other countries, resulting in grave damage to global communications.
Finally, is there any evidence to suggest that being able to defeat phone encryption, or conversely, being unable to do so, has hampered either law enforcement or intelligence operations directed against genuine terrorists or criminals? The answer is clearly “no” and perhaps that is the way the encryption issue should be addressed. If encryption does not do demonstrably grave damage to either law enforcement equities or national security, it should only be seen as a boon to the individual American who can henceforth expect that his privacy will be respected.
Amidst simultaneous media-driven foreign policy crises dealing with Russia and ISIS, most normally well informed Americans might well be forgiven for missing a recent Associate Press report headlined “CIA halts spying in Europe.”
The text somewhat contradicts the headline, as it goes on to describe how the Central Intelligence Agency has issued instructions to its case officers operating in Europe to stand down only on “unilateral operations” involving officials of foreign host nations, which presumably implies countries in the NATO alliance. What that means in plain English is that if one is an American spy assigned to the station in France, one’s “host country,” going after a French official to turn him into a recruited agent is currently not allowed. A “unilateral operation” is one in which the CIA controls and runs the agent clandestinely without anyone else being aware of the relationship.
The stand-down is reported to be in response to the recent flap in Germany where it was determined that at least one and possibly more German government officials were working as spies for the CIA, leading to the unprecedented expulsion of the Agency’s Station Chief by the Germans. It also comes on the heels of the Edward Snowden revelations about National Security Agency spying on top government officials in a number of European countries, including Germany, countries that are at least nominally allies of the United States.
While it may appear to be a no-brainer that spying on the German, French, or Italian governments would produce little information that would justify the blowback resulting from getting caught, there are a lot of good reasons why the CIA would like to have a source at the policy making level of any government. It is because what one is being told in diplomatic language might well conceal nuances or even a fallback position that could mean something quite different.
To cite only one example, while the U.S. is eager to pressure Russia over Ukraine, many European countries are much less willing to antagonize Moscow. If I were the U.S. President I would want to know just how hard my allies are really willing to push before making a commitment for Washington to take the lead. Likewise regarding ISIS, key U.S. allies including Saudi Arabia and Qatar in the Persian Gulf are going along with pressuring the terrorist group even though they initially supported it and continue to have mixed feelings about Sunni extremists in general. It would be nice to know what they are really prepared to commit to. I cite these two examples not because I think the U.S.-driven policies in either the Middle East or Eurasia are sensible, quite the contrary, but purely as seen from the perspective of Washington power brokers.
And then there is Turkey, America’s most important ally in the Near East. Unless I have missed something, Ankara is persisting in refusing to allow the United States to use its airbase at Incirlik to launch attacks on terrorist groups inside Syria, requiring Washington to stage attacks from carriers in the Persian Gulf. This puts them farther away from the targets and is logistically more complicated. There are also reports that Turkey has been buying black market oil from ISIS while also facilitating the supplying and manning of several terrorist groups operating inside Syria and Iraq. Press accounts from Turkey suggest that ISIS has been recruiting Turks and raising money in Istanbul and elsewhere inside the country without any interference from the police or intelligence services. There were also pro-ISIS demonstrations in Istanbul and elsewhere to protest the beginning of the U.S. bombing campaign in Iraq and Syria, again without any reaction by the authorities.
Persistent reports suggest that as many as 5,000 Turkish volunteers are serving with various rebel groups inside Syria, to include a number of former Turkish Army officers and possibly also some intelligence operatives. So one might reasonably conclude that Turkey, itself a Sunni state possibly aspiring to recreate something like the old Ottoman Empire complete with the caliphate, is somewhat ambivalent about what it actually prefers to see emerge from Syria and Iraq. It is almost certainly playing both sides off against each other, hoping to find a comfortable landing spot in between.
Even conceding that President Barack Obama’s current war on terror is a fool’s errand, knowing what Turkey is up to and what its actual intentions are would have to be a primary concern for policy makers in Washington, suggesting that there are a lot of good reasons to spy against at least some allies in Europe. Penetrating the Turkish government at top levels would be a perfect high-priority task for an American intelligence agency.
On a personal note, as a former CIA case officer in Europe whose working languages were Italian, Spanish, German, and Turkish the ban on developing sources who are host country officials would have hit me especially hard, diminishing the potential value of my services. But fortunately for practitioners of the second oldest profession, there are clearly holes in the new policy that it would be possible to drive a truck through.
The restriction, which has been in place for two months, reportedly focuses on host government officials. That leaves a lot of open ground. Presumably local citizens not employed by the government are fair game, as are foreign officials and residents who are either living or working outside their home countries. Recruiting a Russian official in Paris would be allowed, and probably likewise an Italian or Greek official if one could make the case that they might be useful. And it is always possible to find someone useful. A targeted Russian or Chines official might be wary when talking to an American, but more open to development by someone from a country regarded as less threatening. Agents who serve as intermediaries between a U.S. case officer and a target are referred to as access agents.
And actual intelligence value aside, the internal mechanics of CIA dictate that the game must go on no matter what the ground rules. Overseas officers are primarily rated on two criteria: recruiting new sources and running existing sources productively to produce disseminable information. If going after local government officials is no longer allowed, the ingenious minds of men and women who rely on a numbers driven game to achieve promotion will come up with something new to replace it. During my time in the Agency it was notorious that any recruitments made by almost any officer during the last six months of his or her tour were likely to be bogus, contrived to boost the numbers and produce a glowing final fitness appraisal when moving out of one posting and on to another. Which means that CIA case officers will persist in doing whatever they can to game the system and the number of access agents will skyrocket.
All of which means that a short-term panic that has produced a restriction on whom CIA can recruit will eventually be reversed when the realities of why we spy come home. The first time Susan Rice turns to the CIA representative on the National Security Council and asks, “What does President Recep Tayyip Erdogan intend to do?” and the answer is “We don’t know,” everything will return to business as usual.
President Barack Obama presents something of a dilemma. I voted for him twice in the belief that he was basically a cautious operator who would not rush into a new war in Asia, unlike his Republican opponents who virtually promised to attack Iran upon assuming office. Unfortunately, Obama’s second term has revealed that his instinct nevertheless is to rely on America’s ability to project military power overseas as either a complement to or a substitute for diplomacy that differs only from George W. Bush in its style and its emphasis on humanitarian objectives.
That the president is indeed cautious has made the actual process of engagement different, witness the ill-fated involvement in Libya and the impending war-without-calling-it-war in Syria and Iraq, both of which are framed as having limited objectives and manageable risk for Washington even when that is not the case. Obama’s foreign and security policy is an incremental process mired in contradictions whereby the United States continues to involve itself in conflicts for which it has little understanding, seemingly doomed to repeat the mistakes of the past thirteen years but without the shock and awe.
Obama’s actual intentions might most clearly be discerned by looking at his inner circle. Three women are prominent in decision making relating to foreign policy: Samantha Power at the United Nations, Susan Rice heading the National Security Council, and Senior Adviser Valerie Jarrett in the White House. One might also add Hillary Clinton who, as Secretary of State, operated far more independently than her successor John Kerry, putting her own stamp on policy much more than he has been able to do. Where Secretary of Defense Chuck Hagel fits into the decision making is unclear, but it is notable that both he and Kerry frequently appear to be somewhat out of sync with the White House.
What does the Obama team represent? Certain things are obvious. They are hesitant to involve the United States in long, drawn out military adventures like Iraq and Afghanistan but much more inclined to intervene than was George W. Bush when there is an apparent humanitarian crisis, operating under the principle of responsibility to protect or R2P. That R2P is often a pretext for intervention that actually is driven by other less altruistic motives is certainly a complication but it is nevertheless the public face of much of American foreign policy, as the nation is currently witnessing regarding ISIS.
Hillary Clinton has criticized Obama foreign policy because on her view he did not act soon enough on ISIS and “Great nations need organizing principles, and ‘don’t do stupid stuff’ is not an organizing principle.” Her criticism is odd as she was a formulator of much of what the president has been doing and one should perhaps assume that her distancing from it might have something to do with her presidential ambitions. Interestingly, in a self-promoting recent review of Henry Kissinger’s new book World Order, Clinton both defines her own Kissinger-esque foreign policy strategy and also concedes that it is more-or-less the same as Obama’s. Clinton wrote that Kissinger’s world view “largely fits with the broad strategy behind the Obama administration’s effort over the past six years to build a global architecture of security and cooperation for the 21st century.”
Now if all of that is true, and it might just be putting lipstick on a pig to create an illusion of coherency where none exists, then the United States might just be engaging in a sensible reset of its foreign policy, something like the Nixon Doctrine of old. But the actual policy itself suggests otherwise, with the tendency to “do stupid stuff” prevailing, perhaps attributable to another Clinton book review assertion of “a belief in the indispensability of continued American leadership in service of a just and liberal order.”
Clinton inevitably confuses leadership with hegemony, clearly believing as one of her predecessors at State put it, that America is the “indispensable nation.” Nor can she discern that few outside the beltway actually believe the hype. It would be difficult to make the case that the United States either stands for justice or is willing to tolerate any kind of international order that challenges American interests.
And the arrogance that comes with power means that the country’s leadership is not often able to explain what it is doing. Currently, the administration has failed to make any compelling case that the United States is actually threatened by ISIS beyond purely conjectural “what if” scenarios, suggesting that the policy is evolving in an ad hoc but risk-averse fashion to create the impression that something is actually being accomplished. Any plan to “destroy” ISIS without serious consideration of what that might entail means that the U.S. will inevitably assume the leadership role. Because air strikes cannot defeat any insurgency, and the moderate Syrian rebels waiting to be armed are a fiction, the Obama plan invites escalation and will make the Islamist group a poster child for those who want to see Washington fail yet again in the Middle East.
The tendency to act instead of think might be attributable to fear of appearing weak with midterm elections approaching, but it might also be due to the persistence of neoconservative national security views within the administration, which brings us to Victoria Nuland. Nuland, many will recall, was the driving force behind efforts to destabilize the Ukrainian government of President Viktor Yanukovych. Yanukovych, an admittedly corrupt autocrat, nevertheless became Prime Minister after a free election. Nuland, who is the Assistant Secretary of State for European and Eurasian Affairs at the State Department, provided open support to the Maidan demonstrators opposed to Yanukovych’s government, to include media friendly appearances passing out cookies on the square to encourage the protesters.
A Dick Cheney and Hillary Clinton protégé who is married to leading neocon Robert Kagan, Nuland openly sought regime change for Ukraine by brazenly supporting government opponents in spite of the fact that Washington and Kiev had ostensibly friendly relations. It is hard to imagine that any U.S. administration would tolerate a similar attempt by a foreign nation to interfere in U.S. domestic politics, particularly if it were backed by a $5 billion budget, but Washington has long believed in a global double standard for evaluating its own behavior.
Nuland is most famous for her foul language when referring to the potential European role in managing the unrest that she and the National Endowment for Democracy had helped create. To be sure, her aggressive guidance of U.S. policy in Eurasia is a lot more important than whatever plays out in Syria and Iraq over the remainder of Obama’s time in office in terms of palpable threats to actual American interests. The replacement of the government in Kiev was only the prelude to a sharp break and escalating conflict with Moscow over Russia’s attempts to protect its own interests in Ukraine, most particularly in Crimea.
Victoria Nuland is playing with fire. Russia, as the only nation with the military capability to destroy the U.S., is not a sideshow like Saddam Hussein’s Iraq. Backing Moscow into a corner with no way out by using threats and sanctions is not good policy. Washington has many excellent reasons to maintain a stable relationship with Moscow, including counter-terrorism efforts, and little to gain from moving in the opposite direction. Russia is not about to reconstitute the Warsaw Pact and there is no compelling reason to return to a Cold War footing by either arming Ukraine or permitting it to join the North Atlantic Treaty Organization (NATO).
And make no mistake about Nuland’s broader intention to expand the conflict and directly confront Russia. In Senate testimony in May she cited how the administration is “providing support to other frontline states like Moldova and Georgia.” Frontline? Last week Secretary of Defense Chuck Hagel seemed to confirm that the continued expansion of NATO is indeed administration policy, saying that Georgia would be next to join in light of “Russia’s blatant aggression in Ukraine.”
In 2009 President Barack Obama received the Nobel Peace Prize for “his extraordinary efforts to strengthen international diplomacy and cooperation between peoples.” In retrospect it was all hat and no cattle given the ongoing saga in Afghanistan, the reduction of a relatively stable Libya to chaos, meddling in Ukraine while simultaneously threatening Russia, failure to restrain Israel and the creation of an Islamic terror state in the Arab heartland. Not to mention “pivots” and additional developments in Africa and Asia. It is not a record to brag about and it certainly does not suggest that the administration is as strategically agile as Hillary Clinton would like to have one believe.
Victoria Nuland is a career civil servant and cannot easily be fired but she could be removed from her top-level policy position and sent downstairs to head the mailroom at the State Department. It would send the message that aggressive democracy promotion is not U.S. policy, but President Obama has kept her on the job. The president also reportedly is an admirer of her husband’s articles and books which argue that the U.S. must maintain its military power to accommodate its “global responsibilities.” So in response to the question “Why does Victoria Nuland still have her job?” the answer must surely be because the White House approves of what she has been doing, which should give everyone pause.
That the United States’ intention to confront Russia over Ukraine, a place where it has no real interests, borders on the incomprehensible has been clearly demonstrated by both Scott McConnell and Daniel Larison. University of Chicago Professor John Mearsheimer has also described in some detail how the dangerous confrontation is largely the fault of Washington and its European allies, most notably because of the thoughtless expansion of NATO that genuinely threatened Russia. Former Polish President Lech Walesa, whose county would be the front line in any armed conflict, has warned that arming Ukraine might reignite the cold war and possibly even lead to a nuclear exchange.
Particularly at times when security-based policies appear to make no sense, as a former intelligence officer I am often asked how the people who work for the State Department, CIA, and DIA feel about such developments. It is a difficult question to answer as there is no such thing as a monolithic viewpoint in any of the organizations in question. On one hand, dealing with crises in international relations in one form or another is the raison d’etre of the various bureaucracies, so many are attracted by the challenge. But on the other hand, the highly educated and experienced cadres that do the yeomen’s work in each organization are not immune to concerns about where the United States is heading in its pursuit of “terrorists” and “rogue states” worldwide.
A basic understanding of how big bureaucracies operate is essential. Very few individuals in any large government bureaucracy are actually involved in what one might describe as policy issues. This is why insiders refer to places like the “seventh floor” at CIA and State or the E-Ring at the Pentagon, because that is where the movers and shakers have their offices. They are the public faces of their organizations and everyone else is little more than supporting cast. Indeed, many of those on the top executive level have little in common with the other employees at all, as they are themselves political appointees, designated to provide largely uncritical support for the policies being promoted by the White House even when the institutions they head are dubious.
That means that the Chuck Hagels, John Kerrys, and John Brennans of this world probably are only dimly aware of what is occurring on the lower floors of their own buildings. Confronting Russia appears to be popular in both Congress and the media, so it is a no-brainer to crank it up with midterm elections looming, particularly as it also averts attention from the failure of policy on the Israel-Palestine problem. Bombing ISIS is a similarly appealing substitute for having a real policy that will bring real results, and even though it hasn’t worked in Afghanistan, the White House and its accompanying chorus of cabinet secretaries and intelligence directors can feel comfortable singing from the same sheet of music and promising that everything will turn out well someday. It might actually be that the cabinet truly believes in what it is peddling, but that is a thought too frightening to contemplate.
But not everyone agrees with their bosses. Indeed, I know of no former or current intelligence official who believes that the expansion of NATO into Eastern Europe was a good idea, that toppling Bashar al-Assad would bring anything but chaos, or that bombing ISIS will actually accomplish anything. Given the current national security environment, I think I can state with some certainty that a solid majority of lower and mid-level employees would regard the administration responses to the ongoing series of crises, including both Ukraine and ISIS, as poorly conceived and executed. In the case of Ukraine the judgment would be somewhat stronger than that, bordering on perceptions that what we are experiencing is an abuse of the intelligence process to serve a political agenda, that the Cold War-style tension is both unnecessary and contrived. Many regard the dubious intelligence that has been produced to implicate Moscow in Crimean developments as both cherry picked and unreliable.
Within the intelligence community memories of Iraq and the prefabricated judgments made regarding Syria’s alleged use of sarin gas last year are still fresh among both analysts and information collectors, requiring the political leadership to make its case unambiguously. Intelligence work makes one naturally cynical but the rank and file are now becoming generally suspicious of and even hostile to what is going on.
I have some confidence in my assessment suggesting general unease among intelligence professionals because, as a former spook, I have inevitably fallen in with a crowd of ex-intel and military types who in turn have networks among their former colleagues, some of whom are still employed in the intelligence and national security bureaucracies. We exchange information and viewpoints on a regular basis. One thing we all understand instinctively is that nothing being asserted by any government is ever quite as it seems, and intelligence can be a dodgy business depending on who is pushing the buttons to make a palatable product come out at the other end.
And the mindset of former officers is today quite different than it was in 2003, when 9/11 was still more-or-less fresh, Afghanistan had not yet started to crater, and most people working at CIA and DIA were willing to give the Bush administration the benefit of the doubt, even if there was widespread concern that the intelligence being produced to attack Saddam Hussein was a bit on the thin side. But having watched Iraq, Afghanistan, and Libya crash and burn while being scapegoated numerous times by both Republicans and Democrats in the White House, many intelligence professionals are no longer willing to play follow the leader.
To be sure there are many in the national security community who continue to believe that destroying terrorism justifies massive global devastation, and that the Russians will be marching into Finland if they are not stopped at Sevastopol. But those numbers are surely diminishing as people examine the results of 13 years of trying to make Manichean solutions work in an increasingly complex world.
So the short answer to whether those engaged at the working level in national security actually believe what their bosses are saying is, “Probably not.”
The past few weeks have not been kind to Israel in the public relations department. The war against Gaza was so lopsided and obviously contrived that even in the United States pro-Israel sentiment began to soften. For those interested in fine points of national security there were three news articles of note. The first quoted from a document from the Edward Snowden haul citing a 2007 National Security Agency (NSA) assessment naming Israel as the “third most aggressive intelligence service against the U.S.” It ranked just behind perennial adversaries China and Russia in terms of aggressiveness and the persistence of its espionage effort. Israel was also cited as a “leading threat” to the infrastructure of U.S. financial institutions.
The second article reported how U.S. Secretary of State John Kerry had his cell phone communications intercepted by Israel in 2013 when he unsuccessfully sought to negotiate a peace agreement with the Palestinians. The Secretary of State certainly has access to cell phones with encryption, though Israeli snoopers might be able to defeat such measures, but it is possible that he was speaking on open lines at the time. It is an incident recalling both the NSA tapping of German Chancellor Angela Merkel’s cellphone and the notorious Victoria Nuland phone intercepts regarding Ukraine in which she colorfully expressed her opinion of the Europeans.
The third piece described how Israel was given weapons from a U.S. stockpile during its assault on Gaza, allegedly without either the White House or the State Department being informed about what was occurring. As the weapons were being used against mostly Palestinian civilians and included targeting United Nations facilities, the transfer should have been regarded as highly sensitive, politically speaking. One article discussing the confusion also cited an acrimonious phone call between the Israeli prime minister and the American president, noting drily that the administration clearly has “…little influence over the government of Prime Minister Benjamin Netanyahu” in spite of Tel Aviv being the leading recipient of U.S. aid dollars.
All of the above would be embarrassing enough, but Israel has also been extremely active in yet another enterprise that falls in the gray area between covert operations and overt governmental activity. Many governments seek to respond to negative commentary in the media, but they normally do it openly with an ambassador or press officer countering criticism by sending in a letter, writing an op-ed, or appearing on a talk show. Israel does indeed do that, but it also engages in other activities that are not so transparent.
When an intelligence organization seeks to influence opinion by creating and deliberately circulating false information, it is referred to as a “disinformation operation.” Such activity is generally described as public diplomacy when it is done openly by a recognized government official and the information itself is both plausible and verifiable, at least within reasonable limits. But Israel has refined the art of something in between, what might be referred to more accurately as “perception management” or “influence operations” in which it only very rarely shows its hand overtly, in many cases paying students as part-time bloggers or exploiting diaspora Jews as volunteers to get its message out. The practice is so systemic, involving recruitment, training, Foreign Ministry-prepared information sheets, and internet alerts to potential targets, that it is frequently described by its Hebrew name, hasbara, which means literally “public explanation.” It is essentially an internet-focused “information war” that parallels and supports the military action whenever Israel enters into conflict with any of its neighbors.
The hasbara onslaught inevitably cranks up when Israel is being strongly criticized. There were notable surges in activity when Israel attacked Gaza in 2009 and 2012, as well as when it hijacked the Turkish humanitarian relief ship the Mavi Marmara in 2011. The recent Gaza fighting has inevitably followed suit, producing a perfect storm of pro-Israel commentary. The comments tend to appear in large numbers on websites where moderation and registration requirements are minimal, including Yahoo! News, or Facebook and Twitter. Sites like TAC as well as leading national newspapers have much stricter management control over who comments, and are generally avoided.
The hasbara comments are noticeable as they tend to sound like boilerplate, and run contrary to or even ignore what other contributors to the site are writing. They often include spelling and syntactical hints that the writer is not natively fluent in English. As is the practice at corporate customer support call centers in Asia, the commenters generally go by American-sounding names and they never indicate that they are Israelis or working on behalf of the Israeli government. They tend to repeat over and over again sound bites of pseudo-information, most recently maintaining falsely that Hamas had started the “war” and that Israel was only defending itself. The commenters operate in the belief that if something is repeated often enough in many different places it will ipso facto gain some credibility and create doubts regarding contrary points of view.
That Israel is engaged in perception management on a large scale has more-or-less been admitted by the Israeli government, and some of its mechanisms have been identified. The Israeli Foreign Ministry even sent a letter out to a number of pro-Israel organizations emphasizing the “importance of the internet as the new battleground for Israel’s image.” Haaretz reported in 2013 how Prime Minister Netanyahu’s office collaborated with the National Union of Israeli Students to establish “covert units” at the seven national universities to be structured in a “semi-military” fashion and organized in situation rooms. Students are paid as much as $2,000 monthly to work the online targets.
The serious collaboration between government and volunteers actually began with Operation Cast Lead in early 2009, an incursion into Gaza that killed more than 1,800 Palestinians, when the Foreign Ministry pulled together a group of mostly young computer savvy soldiers supplemented by students both overseas and within Israel to post a number of government-crafted responses to international criticism.
Many of the volunteers worked through a website giyus.org (an acronym for Give Israel Your United Support). The website included a desktop tool called Megaphone that provided daily updates on articles appearing on the internet that had to be challenged or attacked. There were once believed to be 50,000 activists receiving the now-inactive Megaphone’s alerts.
There have also been reports about a pro-Israel American group called Committee for Accuracy in Middle East Reporting in America (CAMERA) preparing to enter its own version of developments in the Middle East on the popular online encyclopedia Wikipedia. E-mails from CAMERA reveal that the group sought volunteers in 2008 to edit material on Wikipedia “to help us keep Israel-related entries … from becoming tainted by anti-Israel editors,” while also recommending that articles on the Middle East be avoided initially by supporters so as not to arouse suspicions about their motives. Volunteers were also advised to use false names that did not hint at any Israeli or Jewish connection and to avoid any references to being organized by CAMERA. Fifty volunteers reportedly were actively engaged in the program when it was exposed in the media and the program was put on hold.
CAMERA is an Internal Revenue Service-approved 501(c)(3) organization, which means that contributions to it are tax exempt. Such exemptions are granted to organizations that are either charitable or educational in nature and they normally preclude any involvement in partisan political activity. As CAMERA would not appear to qualify as a charity, it is to be presumed that its application for special tax status stressed that it is educational. Whether its involvement in “un-tainting” Wikipedia truly falls within that definition might well be debated, particularly as it appears to have been carried out in semi-clandestine fashion. CAMERA might well also be considered to be a good candidate for registration under the Foreign Agents Registration Act of 1938 (FARA), as its activity is uniquely focused on promoting the perceived interests of a foreign government.
The use of the nation’s universities as propaganda mills by the Israeli government also raises other significant issues. The growing Boycott, Divestment, and Sanction movement (BDS) has included some universities as targets because of their alleged involvement with the government in the occupation of the West Bank. That the universities are also involved in possible government-sponsored information operations might be an additional convincing argument that BDS supporters might use to justify blacklisting at least some Israeli academic institutions.
Every government is engaged in selling a product, which is its own self-justifying view of what it does and how it does it. But the American public in particular should be aware of the extraordinary efforts that Israel and its supporters make to present a crafted and coordinated image through the media, particularly by way of the Internet. There are certainly many reasons why the United States uniquely views Israel favorably, but the skillful use of information manipulation and perception management certainly contributes to the process.