Update: New Information on NSA Surveillance Scandal

Last week I wrote about the breaking story that the NSA has been monitoring phone records after obtaining a court order that allowed them to collect data from Verizon Wireless.  As I noted, feelings on the issue are split.  An editorial from the New York Times claimed that the Obama administration had “lost all credibility on the issue,” and that the government was clearly abusing its power.  The Washington Post took a similar stance, but called for more information on the matter before the public jumped to conclusions.  Over the weekend, more information came to light that might help us paint a better picture of what exactly the NSA’s telephone surveillance program entailed.

Most of the new information about the NSA’s PRISM program came from the whistleblower himself, Edward Snowden, and ex-CIA employee.  Snowden is currently living in Hong Kong to avoid prosecution by the federal government for leaking the story.  He provided The Guardian, the British news agency that first broke the story, with a 12-minute video interview that you can watch here.  In the interview, Snowden claimed to have had the authority to spy on any American citizen, including the President.  He claimed to have leaked the information because of some of the same concerns I voiced last week.  In particular, he said that he did not want to live in a society that secretly monitors its citizens, especially those who have done nothing wrong.

So basically what we have learned is that between the CIA and NSA, the federal government had virtually unlimited power to monitor U.S. citizens, even those in the most powerful positions.  It would appear that the government needed no probable cause of any kind to place surveillance on these people.  I think it’s safe to say that most people’s initial reaction to any instance of government surveillance is outrage.  As I said before, we are a freedom- and privacy-loving people.  But it’s also important to look at all perspectives before jumping to conclusions.

First things first, the government is not in an enviable position.  Charged with protecting over 300 million citizens, agencies like the NSA and CIA have a monumental task in detecting and thwarting terrorist attacks against the United States.  Incidents like 9/11 and the Boston Marathon attacks showed just how susceptible we can be to terrorism without implementing a proactive approach.  Because of this, there seems to be a general consensus that the government must have some type of surveillance and intelligence gathering programs.  The trouble is in deciding just how extensive and intrusive these programs should be.  If the government backs off on its surveillance programs and an attack occurs, the public will be outraged and ask why more wasn’t done to protect them.  On the other hand, in situations like this where the government is perceived as having gone too far, the public is also outraged.  The happy medium, if it exists at all, would be extremely difficult to find.  So if the public is going to be outraged regardless of which stance the government takes, it makes sense to some extent that the government would take a proactive stance that might actually prevent attacks and prevent American deaths.

Second, we have to look at what the government was searching for in the records acquired from Verizon.  So far, it appears that the NSA was not listening to individual phone calls or audio recordings.  From what we know thus far the NSA was simply analyzing data for patterns that might uncover terrorist activity within the U.S., which most would consider a legitimate government concern.  Nothing so far points to the government using the collected data for censorship purposes, or anything unrelated to preventing terrorism for that matter.

Having said that, I am not trying to convince anybody that the government did the right thing.  Determining what the right thing even is in this situation is an extremely difficult task, and there probably isn’t a concrete answer.  There is certainly a chance that the government may abuse its power any time it monitors its citizens, but we still don’t have all the facts to make a determination on whether or not they were.  And, especially at a time when confidence in our government is so low, public outcry against the NSA is understandable and maybe warranted.  Even so, when we look at this situation we have to keep it in perspective.  One of the government’s many jobs, and more specifically the NSA’s job, it to protect the public from terrorist attacks, and so far it looks like that is what the PRISM program is intended to do.  More facts are sure to come to light in the following days and weeks, and we might want to reserve judgment until then.

Chris Whitten, Research Fellow
Center for Policy and Research

CIA whistleblower/leaker John Kiriakou foils government plot to retaliate against him

John Kiriakou, the former CIA clandestine officer who was recently sent to Loretto Federal Corrections Institute on charges of leaking the identity of a fellow CIA officer, has written a letter to the public about his experiences in prison. Kiriakou maintains that his prosecution for the leak was in retaliation for his whistleblowing on the Enhanced Interrogation Techniques (or EITs) which most now consider to be torture.

While the letter is a very interesting view into life in a federal prison, the event that takes pride of place is an incident in which the prison’s internal security personnel attempted to trick Kiriakou into getting into a fight with another inmate. However, it would seem that tricking a former operative of the US Clandestine Service is not as easy as they thought.

According to Kiriakou, the Special Investigative Service (or SIS), which investigates crimes or other breaches at the prison, pulled Kiriakou into their office to tell him that another inmate was the uncle of the Times Square Bomber, and had received orders from Pakistan to kill Kiriakou. Instead of being intimidated, Kiriakou, who had by this time made friends with just about everyone in the prison, simply walked up to the guy and talked to him. As it turns out, the SIS had told the other inmate (who had nothing to do with the Times Square Bomber) that Washington had ordered Kiriakou to kill him. Kiriakou postulates that the purpose of this plot was to get them to fight and thus produce an excuse to send them both to solitary.

Needless to say, if this story is true, it is should be a scandal. Even if the SIS were operating entirely independently and hatched this half-baked plot on their own, the use of a federal office to not only incite violence, but also to endanger a former CIA officer would be an unforgivable breach of the public trust. So far, little has been reported on this, or anything else related to Kiriakou’s  time in prison.

Paul W. Taylor, Senior Fellow
Center for Policy & Research

Court of Appeals upholds denial of FOIA request seeking Bin Laden photos

The Court of Appeals for the District of Columbia yesterday decided to uphold a district court ruling that the US did not have to release photos of taken during and after the raid on Osama Bin Laden’s compound in Abbottabad, Pakistan. The photos were sought by a conservative watchdog group, Judicial Watch, under a Freedom of Information Act request. The court found, however, that since the photos were used to conduct facial recognition to verify the body as Bin Laden, releasing the photos could endanger intelligence methods.

While I do not dispute that ruling, I am happy about the outcome on another ground altogether. John Bennett, director of the CIA’s National Clandestine Service, described the photos in a declaration to the court as “quite graphic, as they depict the fatal bullet wound to and other similarly gruesome images of his corpse.” And according to the Appeals Court,

“As the district court rightly concluded, however, the CIA’s declarations give reason to believe that releasing images of American military personnel burying the founder and leader of al-Qaida could cause exceptionally grave harm.”

To my mind, this decision validates an important reason for the Freedom of Information Act: informational transparency. Congress did not pass it to give the media free access to salacious material to boost their ratings.

As citizens of an open democracy, Americans have a right to information about their government and its activities. But where the government has a legitimate reason for withholding a document, even if it is on grounds such as diplomatic “embarrassment,” as happened in the Bradley Manning Wikileaks case, a FOIA request should as a matter of policy only be granted if there is a legitimate informational purpose. Judicial Watch could identify no cognizable information contained in the pictures that was not already publicly known. Thus, releasing the photos would not serve FOIA’s purpose of informational transparency, only the media’s purpose of generating buzz.

A vastly undervalued aspect of protecting our rights as citizens of an open society is to avoid abusing those rights. One example of the dangers that fear of unwarranted disclosure can cause can be found in the case of the CIA interrogation tapes. Fearing that these tapes may at some point become public, the CIA destroyed them. The courts yesterday thus did us a favor in protecting the government from unnecessary disclosure of gruesome photos, helping to ensuring that the government can do its job without fear that anything and everything will wind up on Fox, MSNBC, and Al Jazeera.

Paul W. Taylor, Senior Fellow
Center for Policy & Research

 

UN Drone Investigator Endorses Brennan for DCI

In a previous post, I suggested that the UN was beginning what was likely a highly biassed investigation of drone strikes by the U.S. and its allies. But I may have spoken too soon.

The British lawyer heading up the investigation, Ben Emmerson now appears to have endorsed John Brennan’s role in the U.S.’s drone program, as well as his nomination for Director of Central Intelligence.

In an interview with Danger Room, Emmerson said that

“By putting Brennan in direct control of the CIA’s policy [of targeted killings], the president has placed this mediating legal presence in direct control of the positions that the CIA will adopt and advance, so as to bring the CIA much more closely under direct presidential and democratic control. It’s right to view this as a recognition of the repository of trust that Obama places in Brennan to put him in control of the organization that poses the greatest threat to international legal consensus and recognition of the lawfulness of the drone program.”

Emmerson is convinced that Brennan has tried to ensure that the program properly balances the interests of the law, counterterrorism, and the agencies implementing it. He also claims that Brennan has upset some CIA hawks by holding them back and enforcing presidential authority over the agency.

Emmerson also believes that Brennan brings consistency and intelligibility to the program’s decision-making:

“Brennan has been the driving force for the imposition of a single consistent and coherent analysis, both legal and operational, as to the way the administration will pursue this program,” he explains. “I’m not suggesting that I agree with that analysis. That’s not a matter for me, it’s a matter for states, and there’s a very considerable disagreement about that. But what I am saying is that what he will impose is restraint over the wilder ambitions of the agency’s hawks to treat this program in a manner that is ultimately unaccountable and secret.”

“The decision to put Brennan as director of the CIA is a decision to stamp presidential authority over the agency, and to bring it firmly under control.”

Mr. Emmerson’s focus on the internal processes and institutions related to the drone program is very promising, since it means that his investigation will less likely turn into a litany of mistakes made in individual strikes or dubious statistics on civilian deaths. It may even suggest that Mr. Emmerson’s findings could include useful advice on procedural protections against such dangers as mistaken targeting, bad decisions regarding proportionality, and lack of accountability for abuses.

Paul Taylor, Senior Research Fellow

Center for Policy & Research

Update to Targeted Killing Story

Yesterday, President Obama yielded to congressional demands that he release the OLC memo detailing his administration’s legal justification for the targeted killing of US citizens who they suspect are senior terrorists. This was document provided the legal basis on which the administration in 2011 targeted and killed Anwar al-Awlaki, an alleged senior leader of al Qaeda in the Arabian Peninsula, currently the most  dangerous of the various al Qaeda franchises.

While his administration had previously not been willing to even admit that such a memo existed, he has agreed to share the memo with the House and Senate intelligence committees. This was likely a move to temper opposition to the confirmation of John Brennan as Director of Central Intelligence.

Brennan has been a central figure in the Obama administration’s drone program, from being the first official to publicly acknowledge its existence to direct involvement in its administration. While a strong supporter of the drone program, he has also stated that he “would not be the director of a CIA that carries out missions that should be carried out by the U.S. military.”

Paul Taylor, Senior Research Fellow

Center for Policy & Research

Panetta Says the US Didn’t Need E.I.T.’s to Get UBL

Over the past few weeks, the film “Zero Dark Thirty” has undoubtedly brought heightened  attention to the United States’ hunt for bin Laden (UBL).  In the film, some of the more shocking scenes include those in which the main characters, CIA agents, are interrogating detainees at various detention facilities.  The film shows some of the more frequently discussed EIT’s, or Enhanced Interrogation Techniques (arguably, just a more palatable euphemism for torture), including waterboarding, sleep deprivation, food deprivation, stress positions, blasting loud music, and playing off the detainees’ fears and cultural beliefs.

Regardless of whether director Kathryn Bigelow took artistic license when developing these scenes in the film, it is indisputable that EIT’s have been regularly used by the United States in the decade that has passed since the 9/11 attacks.  With the secrecy that shrouded the mission leading to the capture of UBL, it is only natural that the public is hungry for the details regarding how the intelligence leading to that fateful night in Abbottabad .

In an interview on “Meet the Press” that aired Sunday night, outgoing Defense Secretary Leon Panetta said that the search for UBL included piecing together a great deal of disparate information, and admitted that some of the information came from EIT’s, saying “Yes, some of it came from some of the tactics that were used at that time – interrogation tactics that were used.”

However, he continued on to say “I think we could have gotten Bin Laden without that [EIT’s]”- essentially revealing that the controversial EIT’s were not necessary to achieve the United States’ most significant accomplishment thus far in the Great War on Terror, capturing UBL.