Bill Arkin wonders today if the 1980 Oversight Act briefings to the HPSCI/SSCI Chairs and Vice Chairs and leaders of both houses were treated as a special access program (“SAP” ) rather than a bastardized form of novel “special activity” — collection has rarely been considered a “special activity”. A SAP? Possible. Certainly reflects EOVP's preference for operating. (But see NYT piece below).



And a SAP framework fits in the Adminstration's hubristic Curtis Wright misuse of non-binding dicta. (Executive supremacists have always trotted out U.S. v. Curtis-Wright Export Corp. (1936) as establishing the president has plenary and exclusive power as the sole organ of the federal government in the field of international relations). The Court's precise holding, however, was not on this formulation. The above language, always cited, is non-binding, prefactory dicta.

EOVP would argue the Administration had inherent power to do this program on its own. So the SAP briefing would be . . . a courtesy, as well as complicity briefing.

The result? Bill Arkin ends up agreeing with the Stiftung — and you, dear reader — Congress no longer acts and believes it is a co-equal branch of government anymore. Read it here.

UPDATE: 21.12.05. 4:00 PM See this NYT article that suggests that other members of Congress agree with the Stiftung's initial 1980 Oversight Act analysis as appropriate, not a SAP. And in the original Times reporting they were calling this a “special collection activity”. The “complicity briefing” has made its impact.

The unprecedented Foreign Intelligence Surveillance Court of Review opinion from November 2002, In re Sealed Case famously overturned a seven judge FISC decision in 2001. There the FISA Court denied two FBI requests for wiretaps under FISA.

So the Stiftung dug up the decision again for a refresher. The dates now assume more meaning, given the extra-legal 2002 activities of the Administration. Things pop out now that did not catch the eye back then.

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“They just don't know if the product of wiretaps were used for FISA warrants — to kind of cleanse the information,” said one source, who spoke on the condition of anonymity because of the classified nature of the FISA warrants. “What I've heard some of the judges say is they feel they've participated in a Potemkin court.” (emphasis added and richly deserved)

WaPo article noting that Judge James Robertson just resigned from the FISA Court.

“DOH!!”

Homer Simpson's reply

See jump for why they are probably right — as set out in USSID 18, in earlier post below.



UPDATE: The art here is not a demonization of the NSA. Although as famously said elsewhere, all art is political. The Stiftung believes the NSA, like the Agency pre-1975, is attempting to obey its Executive branch civilian masters. EOVP secrecy and radicalism, not the USSS, are the root causes of this mess.

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The current outrage eventually will turn (one hopes) into focused inquiry. And in that spirit, here are some thoughts about where it should go.



First, this is not just about the NSA.

The United States SIGINT System (USSS) is involved. USSS includes but is more than the NSA. It includes the NSA, the miltiary signal intelligence entities, the CIA and others. Implications below.

Second, FISA is not the framework that will determine what has been done. The truth of what is underway may well be found in the current — or operative — version of a document called the United States Signals Intelligence Directive (USSID) 18. USSID 18 as revised — or superseded — will set forth the rules for USSS surveillance of U.S. citizens. And thereby reveal exactly how or even if the Administration believes FISA applies. (1993 45 page PDF version (redacted) here (right click, 'save as')).

Third, the inquiry needs to make clear not only what is being intercepted but how that information is being handled, disseminated, and accessed. And by whom. Not only US intelligence entities can peer into and get access to NSA Operations Directorate product. Yes, dear reader, select foreign entities/Nations can, too. And possibly other non-governmental entities. It's the database, Stupid! would be the shorthand.

Given the extraordinary secrecy involved by the Administration and the patently disingenuous legal arguments offered by those Towers of Legal Acumen, Gonzales and Miers, it may well be that the current — or operative — version of the regulations set forth USSID 18, once revealed, may be even more ugly than imagined at the moment.

More to come shortly explaining all this . . .

Addendum: For a program of this extraordinary sensitivity, one assumes USSID 18 has been superseded by a more limited directive and that replacement SCI or above.

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It's as bad as we thought. TPM Cafe has this sad note from Rockefeller to Cheney. Get the whole thing. As Laura Rozen suspected earlier, it is in the end a technological approach (and obfuscation, btw).*

Why sad? 1) Rockefeller is a member of a co-equal branch of government. 2) By accepting the 1980 Covert Action notification framework (on steroids, it seems), SSCI and HPSCI essentially agreed to their own castration. 3) Our Constitution has been reduced to a plaintive CYA memo. 4) Roberts and the others didn't even do this.

See earlier note below about how EOVP set this up as a “complicity briefing”. But the EOVP radicalism and viral authoritarianism corrupts and stains everything it touches. Ashes. Especially, now, Bush.

Here's asurprisingly good CNN piece (video) describing the architecture of basic call/email set-up intercepts. What the video doesn't discuss but is alluded to by Rockefeller above, is whether by 2003, EOVP was integrating anticipatory/behavorial projections and extrapolations. Beyond call/email set-up of a specific target.

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* If anyone remembers the old Soviet “Threat Briefings”, the ones that would make the hair stand up on the back of the head and turn a stoic like Marcus Aurelius white in shock, in order to get more funding, we should be sympathetic to Rockefeller. The technological complexity was most likely carefully choreographed to render all recipients mute and confused. At least his instincts and DNA told him the Constitution was in danger. For that, we thank you, Senator.

Not all briefings are created equal.

In the Imperial City, we see it all the time. How many ambitious Colonels, gunning for that star, faceless contractors seeking to close the contract, or self-absorbed policy entreprenuers would rather die than forego their Powerpoint slides? Some even with sound effects? (We think Barnett's abuse of the Law & Order wav file merits jail time).

But that is all sturm und drang.



On a whole different layer are complicity briefings. What are they? There briefings are not about sharing knowledge. Although carefully staged to seem that way. The goal is to stain the audience with complicity — even if the recipient doesn't realize it at the time. To bind the recipient to the agenda disclosed. To muffle, not inform. To burn their bridges behind them. Forward or back.

These complicity briefings are morally and intentionally different than obliqueness. Casey and Dewey Claridge would obfuscate (or in the former's case, mumble) or even perhaps misdirect. Complicity briefings are different.

The most infamous of such briefings occurred in Poznan 1943, of course. It is not comparable to the present circumstances in scale, moral terms or significance, but the process is not unrelated. Lest some wingnut at Pajama Media take this out of context, let me underscore again, the substance of the briefing there is without parallel.

We are talking about process here. The complicity briefing as an art form is alive and well in D.C.

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Digby provides a chilling yet pathetic example. [Hoax: the student in question has now retracted this particular story]

In all the furor, it is important to make clear distinctions about what is going on. Because the Devil, and the Administration, like to hide in the details.

There are four different legal frameworks involved and under seige at the moment.

The first and most obvious one: The now-on-hold Patriot Act. This is involved in Digby's example, above.

The second: The 1980 Intelligence Oversight Act. This law governs covert action otherwise known as “special activity” for activity outside the U.S. The law streamlined the congressional oversight functions down to the two new-at-the-time Committees, SSCI and HPSCI. In essence, the President must sign a “Finding” authorizing a special activity, and then notify the SSCI and HPSCI via a “Memorandum of Notification” (“MON” that he/she has done so (or via the new NDI or Director CIA).

Special activity has never been defined to include activities on U.S. soil directed at U.S. citizens.

The third: The 1978 Foreign Intelligence Surveillance Act (FISA), which seeks to govern the ability of the U.S. government to wiretap, physically search and monitor U.S. citizens. (Whether it does so or functions correctly is another matter).

The fourth: the broader effort by the Bush Administration to claim the outermost boundaries of Executive Power and Privilege. These efforts are not new. The arguments used in 2001-05 were advanced almost 20 years ago by Michael Malbin, David Addington (Cheney's current CoS) and others when they served with Cheney as minority staffers for the Joint Committee to Investigate the Iran Contra matter.

Much of what people today claim is “novel” or “audacious” and attribute to John Yoo isn't really his. The Minority Report on the Iran Contra Matter advanced almost all of these arguments in one form or another. The views encapsulated in the Minority Staff Report, the later struggle over the ABM Treaty in the late 1980s/early 1990s, all were part of the legal war to overturn Louis Henkin's Restatement on the Law Foreign Relations and reclaim untrammeled Executive power. Addington's role and Cheney's adherence to that cause — has been lurking around D.C. for some time.



The President's radio address today and other details in the press indicate that the Administration treated the extra-legal NSA wiretapping and surveillance activity essentially as a simple covert action. In other words, like under the 1980 Act, the Administration believed that the President can sign an apparent “Finding” and then simply notify the Chairs and Vice Chairs of SSCI and HPSCI.

This is an amazing thing. And why the Administration needs such extreme boilerplate about the President's unhampered powers under Article II, yada yada yada trotted out again. (Trust me, if you have heard or had to work with this kool aid mantra before, it would be yada, yada, yada too — that is not flippant, but merely the fact that you can predict exactly what these people will say and conclude usually after hearing just the first 25 words. That formulaic).

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The Stiftung is often depressed for what passes for discourse in the Imperial City. One reason is the sorry state of the WaPo. And no. Not because of Woodward. Or John Harris' jealousy over Dan Froomkin. Or the latest meme du jour sending the blogosphere a flutter.

The reason? The WaPo really is not a newspaper. It is an advertising circular, a gossip rag draped around 3/4 page advertisements for furniture, women's lingerie and cars.

So we are not surprised that little coverage is offered for items that won't move the furniture out the doors. One item we wished got more coverage is and was the implications of November 22, when the new government of Angela Merkel was sworn in at the session of the German Bundestag.

Merkel is famously seen by some as the neocons' ray of hope in MittelEuropa. Some herald her as Germany's Margaret Thatcher, while others call her a cross between Margaret Thatcher and Tony Blair. (The mind boggles). And true to form, she is making the right noises, as expected, such as embracing neocon/Blair enthusiasms for the “one tax/flat tax” mantra and pretending to believe Miss Foreign Affairs about CIA renditions.



One item that the Stiftung is watching is the role and performance of Ernst Uhrlau. Uhrlau has recently assumed duties as head of the German Foreign Intelligence Service (Bundesnachrichtendienst - BND). Before this appointment, Uhrlau was the Coordinator of German Intelligence Community (Geheimdienstkoordinator) in the cabinet of the lamentable Chancellor Gerhard Schroeder. (Technically, this is considered in some circles as a step down in prestige, but operationally the possibilities opened are much wider).

Uhrlau is generally seen as a technocrat and he carefully tends to this image with a low profile and minimalist press interactions. His highest profile role was his successful negotiations for the exchange between Israel and the Lebanese Hezbollah of the bodies of the captured Israeli soldiers for the captured militants in January, 2004.

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The National Security Archives is releasing two documents obtained by Jeffrey Richelson and Barbara Elias. (National Security Archives release at jump). They are generating alot of buzz yet are less than what they seem.

(1) The Tenet Memo - “We're at War” — 5 Days After 9/11

Stiftung friends and readers know that the Stiftung called for Tenet's resignation long before 9/11. The Stiftung argued Tenet should go because (a) his go-along, get-along Senate staffer mentality was ill-suited for re-thinking American intelligence post Soviet collapse; and (b) he was even before 9/11 clearly an ineffective manager, largely abandoning any pretense of community management and (like many of his predecessors) concentrating almost exclusively on the CIA in a nurturing and coddling way.

The memo Richelson obtained, copy mirrored here [right click on link and “save as”](as well as at National Security Archives) was famously discussed by Bob Woodward in his fluff piece book, Bush at War.

The memo offers sweeping language as one might expect after 9/11--

“bringing all of our operational, analytical, and technical capabilities to bear-not only to protect the US both here and abroad from additional terrorist attacks-but also, and more importantly, to neutralize and destroy al-Qa'ida and its partners” . . . [you must] “translate the urgency of the difficult tasks ahead to the men and women we lead by our behavior and actions.”

The memo echoes an earlier declaration of war Tenet made circa 1998. At that time, Tenet also told the CIA they were at war with Bin Laden. The Stiftung notes in an earlier post that Michael Scheuer, a smart and determined analyst, was the wrong man to run Alec (later) the Bin Laden Station for CIA. Nonetheless, in Scheuer's defense and those of his successors, despite Tenet's sweeping directive in 1998 that the CIA was “at War”, it took 9/11 and this memo to make the resources in manpower and budget commensurate with a war time directive.

(2) The State Department Cable

This cable [right click on link and “save as”] warns the Saudis that Bin Laden, faced with improved Force Protection measures after the Khobar Towers, might turn to civilian targets as “targets of opportunity”. It is worth noting that the cable does not indicate anyone foresaw an airplane being turned into a weapon to attack another target (a poor man's cruise missile).

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Negroponte named Elliot Jardines as the new Assistant Deputy Director of National Intelligence for Open Source.
Jardines, formerly President of Open Source Publishing, will attempt to exert control over Doug Naquin and the newly emboldened FBIS at the Open Source Center located at CIA. (See item in side bar discussing the sycophantic WaPo blather about Naquin and FBIS, 'Why Intelligence Is The Enemy').

Some, such as Steven Aftergood at the Federation of American Scientists, believe Jardines to be a relatively junior person. In purely bureaucratic terms that is true. But in terms of understanding how Open Source intelligence works and will in the future be as important if not more so to traditional intelligence community product, Jardines has actually been in on the ground floor. See DS&T Analyst Stephen Mercado's agreement with the importance of Open Source information at Reexamining the Distinction Between Open Information and Secrets.

Word is that Negroponte and Hayden do not “get” Open Source intelligence. This does not bode well for the success of the position, Jardines or not Jardines. Negroponte is clearly a mainframe (abacus?) kind of mind. So that should be no surprise. Hayden, however, should at least be somewhat receptive — his tenure at NSA marked a breath of fresh air, fresh thinking, and a conceptual re-do about technology and its role at NSA.

Congrats to the Nation's first Assistant Deputy Director of National Intelligence for Open Source.

Press release after the jump.

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