National Security Intelligence

by Loch K. Johnson

  When news broke in December 2005 about warrantless wiretaps secretly carried out by the second Bush Administration, some SSCI and HPSCI members complained publicly about the FISA violations, but they never did much about it. According to a seasoned reporter with an intelligence beat, the relationship between the oversight committees and the Intelligence Community had “degenerated into a mutual admiration society for secret agencies.”21 Lawmakers seemed to have concluded that it was time to rally behind the spy organizations, even if some (like Roberts) felt occasional twinges of ambivalence toward the secret agencies because of the disturbing intelligence failures that had occurred from 2001 to 2003.

  The Era of Rebalancing (2013– )

  The NSA Metadata Program

  In 2013, a controversial “metadata” surveillance program was disclosed through the most significant breach of classified information in American history. That year, the NSA temporarily hired from the private sector (the Booz Allen Hamilton corporation) a computer expert by the name of Edward J. Snowden, who had also worked for the CIA. Snowden was appalled by what he viewed as an excessive gathering of information by the NSA about the communication patterns of American citizens, including the names and contact numbers of anyone in the United States using a telephone or social media (though not the actual content of their communications). Snowden leaked information to the media about this program, codenamed “215,” in contrast to Operation PRISM that targeted sigint communications without first obtaining a FIAS warrant (which the New York Times had revealed in December of 2005). He also provided the media with thousands of other secret documents that included highly classified, detailed budget data for the intelligence agencies. Snowden fled overseas and, in an odd landing for someone professing devotion to democratic principles, he took up residence in Russia.22

  The Snowden documents on the NSA's metadata program, along with the FISA violations disclosed earlier by the Times, vividly revealed how the fear and anger generated by the September 2001 terrorist attacks had caused the United States to turn rapidly toward an emphasis on security over liberty. This tilt toward unfettered intelligence-collection operations – even at home – would experience a reversal beginning in 2013, however, as a result of the public's reaction to the Snowden revelations about the NSA intelligence fishing expedition. Questions arose as to whether the second Bush Administration and the NSA had gone too far in targeting the communications logs of American citizens, the overwhelming number of whom had nothing to do with global terrorism.

  Yet even in the face of a strong public reaction to the NSA's bulk collection activities, only a pair of SSCI members voted against its continuation: Ron Wyden (D, Washington) and Mark Udall (D, Colorado), who joined forces in a failed attempt to declassify the program. “What happens when you get on [the SSCI],” Wyden has observed, “right away the Intelligence Community sweeps in and basically starts the process of trying to kind of say, ‘Well, these are tough issues.’ And, in effect, only one point of view gets conveyed.” He continued: “It's our job to do vigorous oversight and not just get caught up in the culture that makes you, in effect, something more like an ambassador [for the IC] than a vigorous overseer.”23 For another leading Republican Senator, John McCain, what happened in the metadata case was simple: “Clearly, [the members of SSCI] have been co-opted. There's no doubt about that.”24 A study by the Brookings Institution (a think-tank in Washington, DC) found that “the Snowden revelations exposed a profound failure by Congress to understand and deliberate about the government's massive collection of phone and email records. It dealt with the need for secrecy by leaving the decisions entirely to the president or the intelligence agencies themselves, while pretending to maintain statutory standards.”25

  The number of SSCI and HPSCI members in support of the metadata program started to shrink, though, as more details came to light – especially when an Obama-appointed study panel (the President's Review Group), led by Professor Geoffrey Stone of the University of Chicago Law School, issued a strongly critical analysis.26 Another prominent law professor, Jack Goldsmith at Harvard University, said that “the program was an example of the Administration going it alone, in secret, based on inadequate legal reasoning and flawed legal opinions.”27 With the criticism mounting, President Obama started to have second thoughts about his unquestioning adoption of the Bush Administration's electronic surveillance programs.

  For many on Capitol Hill and elsewhere, the demand from the Bush and Obama Administrations for actionable intelligence about terrorism had trumped basic American values of privacy and liberty. Shock, fear, uncertainty, and revenge had comingled to erase the established legal standards for surveillance (especially as embodied in the FISA of 1978). After 9/11, the Bush Administration adopted a vacuum-cleaner approach to electronic surveillance, rather than (as advocated by civil libertarians) a more pinpointed targeting of individuals based on a standard of reasonable suspicion that they might be involved in terrorist activities.

  As the public debate continued to roil over the NSA's bulk data program, Congress passed the USA Freedom Act. The bill, designed to overhaul the Patriot Act of 2001 (about to expire on June 1), passed in 2015 by a vote of 338 to 88. The new law sought to trim back the reach of the Patriot Act and the NSA's metadata activities. In the same month, the U.S. Court of Appeals for the Second Circuit in New York declared metadata collection illegal, a judicial decision that bolstered the efforts of privacy-oriented lawmakers on Capitol Hill to rebalance the equilibrium between security and liberty.

  President Barack Obama continued to endorsed some aspects of the NSA metadata program, but he instituted improved safeguards. Since the USA Freedom Act adopted his proposed added privacy protections, President Obama signed the bill. The key provisions of the new law and the President's new approach included an emphasis on limiting metadata collection to just two communications linkages from an initial terrorist suspect, along with the storage of this more constricted data in the files of the telephone companies – rather than within the NSA's massive computer storage banks in Utah. Further, the data could be kept for no more than five years. With a proper FISA warrant, the NSA could access these files to examine the intelligence as it related to terrorist suspects. In addition, the FISA Court would be encouraged to have a public-interest attorney present during its hearings about intelligence agency requests for wiretap warrants and for access to the metadata held by private telephone companies (like Verizon).

  The decision of the New York federal court and the enactment of the USA Freedom Act strongly signaled a change in attitudes about the proper balance between national security and individual privacy – both vital for any viable democracy. “I'm not going to vote for an extension of a law [the Patriot Act] that has recently been declared illegal by a federal circuit court,” declared Senator Chris Coons (D, Delaware); and Senator Rand Paul (R, Kentucky) asked his colleagues on the Senate floor: “Are you really willing to give up your liberty for security?”28 Now the pendulum was swinging against the nation's national security hawks and back toward its civil liberty doves. As New York Times analysts put it, in motion on Capitol Hill was a shift away “from a singular focus on national security at the expense of civil liberties to a new balance in the post-Snowden era.”29 The coalition in favor of an intelligence rebalancing was made up of Democrats and libertarian Republicans who brought, the Times reported, “a changing tide in post-Sept. 11 America, where privacy concerns have become as important as national security interests for many people.”30

  Further complicating this ongoing debate between proponents of security and defenders of civil liberties was a ruling by the FISA Court, in the summer of 2015, that the NSA did indeed have a right to continue its metadata program – regardless of the New York Second Circuit opinion – at least until Congress made clear exactly what the boundaries were going to be for the NSA's surveillance practices. “Second Circuit rulings are not binding” on this panel, declared Michael W. Mosman, a FISA Court judge.31 Ju
dge Mosman had become persuaded that a metadata program, had one existed in 2001, might have stopped the 9/11 attacks; however, other reports pointed to the fact that the CIA had lots of information about two of the eventual terrorists hiding out in San Diego fully two years before the attack, but never shared this information with the FBI, which is responsible for domestic counterintelligence. “There was no need for a metadata collection program,” concluded a thoughtful commentator. “What was needed was [CIA] cooperation with other federal agencies.”32

  Congress would no doubt have to deliberate further on the long-term fate of the NSA's collection operations involving American citizens as targets, although not until the 2016 presidential election had run its course. Had these NSA intelligence operations unequivocally led to successes in curbing terrorist attacks, the argument in favor of their continuation would have been persuasive; in fact, though, the NSA and the White House were unable to offer instances compelling enough to quell the defenders of civil liberties – just as was the case with the CIA's use of torture against suspected terrorists.

  The Senate Torture Report

  Immediately after the 9/11 attacks, President Bush gave the CIA authority to capture, detain, and, when necessary, kill Al Qaeda operatives around the world; then, the following year, he waived Common Article 3 of the Geneva Conventions that prohibited “cruel treatment and torture.” (The United States had also ratified the Convention Against Torture in 1988, signed by President Ronald Reagan.) Further, in 2002, the head of Justice's Office of Legal Counsel (OLC) provided the CIA with additional after-the-fact authority to engage in harsh interrogation techniques.33 Jane Mayer writes that “unthinkable cruelty” was becoming official U.S. policy.34

  The CIA Reacts to 9/11

  In September of 2002, the CIA finally briefed a few members of HPSCI and SSCI about their interrogation activities. The Chair of the Senate Committee, Bob Graham (D, Florida), requested additional information; the Agency slow-rolled and stonewalled him, however, knowing that he was about to retire from the Senate in a few months. One nonpartisan outside observer concluded that the Agency's approach to SSCI and HPSCI during this time was one of “disdain and evasiveness.”35

  In 2005 the Agency's interrogation program began to unravel. During November of that year, reporter Dana Priest of the Washington Post revealed the existence of CIA prisons aboard; and, soon afterward, the Deputy Director of Operations (DDO, the top covert action officer at the Agency), destroyed videotapes of the torture sessions, despite earlier admonitions from SSCI and HPSCI that these tapes had to be preserved.36 It took two years, though, before the New York Times learned about and reported on the destruction of the tapes. “There is only one reason why [the videotapes] were destroyed: because certain people wanted that information never to be available,” concluded SSCI Chairwoman Dianne Feinstein (D, California), who had expressed support for the NSA's controversial sigint operations as a counterterrorism tool but decidedly did not approve of torture. She believed that the destruction of the torture tapes had all the earmarks of a cover-up.37

  During the fall of 2006, the plenary SSCI membership was briefed on the interrogation program for the first time, five years after its initiation. General Michael V. Hayden, the CIA's Director (and the former NSA Director who had initiated the metadata program), gave the briefing in his typically self-assured and pugnacious style. He vouched for the effectiveness of the interrogation methods and, in one of his more egregious moments of peddling fiction on Capitol Hill, he claimed that they were actually quite benign: merely “tummy slapping,” as Senator Feinstein recalls him saying.38 Feinstein later remembered that Hayden had presented “the entire set of techniques as minimally harmful and applied in a highly clinical and professional manner. They were not.”39

  While these events were evolving, SSCI decided in March of 2009 – at long last, critics would complain – to initiate a staff investigation into the Agency's interrogation practices. Prodded by public calls for a “truth commission” to examine “torture” and other rumored harsh inflictions against detainees, as well as reeling from the unauthorized destruction of the interrogation videotapes, the SSCI voted fourteen to one in favor of a formal inquiry. The lone holdout was Senator Saxby Chambliss (R, Georgia), the Committee's Vice Chairman.40

  The GOP members of SSCI soon abandoned the inquiry, however, on grounds that it had become politicized. The Democrats pressed on and, after more than five years of research, writing, and wrangling with the CIA and SSCI Republicans, they sent a draft report to the Agency and the White House for a classification review. Several more months went by. Finally, a fatigued SSCI voted by a margin of eleven to three (with one abstention) to give up on publication of the full report and settle for the release of just an executive summary – if it could even achieve that. The three senators voting no, all Republicans, did not want to see even the public release of a declassified executive summary.

  After an agonizing eight more months of tug-of-war over declassification decisions, SSCI finally gained permission from the Obama Administration near the end of 2014 to publish the executive summary. (At no point during or after this process did President Obama ever say a word to Senator Feinstein about her Committee's findings.) Even in its truncated form, the executive summary of the report was a lengthy and searing document: 499 pages long and with 2,725 footnotes.

  Reaction to the Torture Report

  When the GOP members of SSCI bailed out of the torture inquiry, the Democratic members authorized six of their professional staffers to move forward in trying to determine the authorization for the Agency's use of torture. The staff also examined the nature of the around-the-clock interrogation techniques, which ran from waterboarding three detainees (183 times, in the instance of detainee Khalid Sheikh Mohammed, the suspected mastermind of the 9/11 attacks, known by Agency interrogators as KSM) and rectal feeding, to mock executions and sleep deprivation lasting for days (seven-and-a-half days in one case). Some of the detainees were confined to cramped, coffin-like boxes. According to the SSCI report, one of the waterboarded detainees, Abu Zubaydah, “became completely unresponsive, with bubbles rising through his open, full mouth.”41 The report said that one ploy used by the CIA was the “hard takedown,” whereby five Agency people would jump a detainee, hood him, cut away his clothing, punch him, and drag him down a hallway.

  The Director of the CIA, John Brennan, has said that the Senate report is full of exaggerations and errors – an incomplete and selective picture of what occurred. Republicans on SSCI echoed this judgment in a minority report. Yet, in 2016, the chief military prosecutor at Guantánamo, General Mark Martins, read the full classified document and commented publicly that the facts were accurate, based on his knowledge of the interrogation program.42

  The investigators studied, as well, the question of whether these methods had elicited useful information that shielded the United States from further terrorist attacks. Brennan eventually acknowledged: “We have not concluded that it was the EITs [enhanced interrogation techniques, in spytalk] within that program that allowed us to obtain useful information from the detainees subjected to them.” Ultimately, though, in his opinion, the question of whether torture had been useful was “unknowable.”43 In contrast, the conclusions reached by SSCI investigators were that the methods used by the CIA to extract information from detainees were far more barbaric than the Agency had claimed (one partially naked detainee, who had been apprehended in a case of mistaken identity, died of hypothermia in 2002); and that the effectiveness of this approach had been grossly exaggerated by General Hayden and everyone else at the CIA, the White House, and the Justice Department.

  Many observers of this debate pointed out that the more important matter had to do with the damage the use of torture had done to America's reputation around the world for fair play and dedication to human rights. As President Obama said about the SSCI report, it “reinforces my long-held view that these harsh methods were not only inconsistent with our
values as a nation, they did not serve our broader counterterrorism efforts or our national security interests…upholding the values we profess doesn't make us weaker, it makes us stronger.”44 The Senate Torture Report raised vital questions about whether secret agencies had overreached in the direction of security by adopting counterterrorism measures alien to America's fundamental ethical principles.

  CIA Attacks the SSCI Staff

  Also in 2014, in the context of the SSCI torture investigation, the Agency further contributed to the growing sense in the United States that the time had come to rebalance the security–liberty equation. In a move that set a new standard of brazenness and disdain toward congressional overseers, CIA officers hacked into computers – four times – that the SSCI staff had used during the torture inquiry. The Agency's cyber-warriors removed 870 documents during one hit, and 50 on another occasion.45 Director Brennan claimed – falsely, it turned out, although perhaps he thought his statement was correct at the time – that SSCI staffers had first hacked into the Agency's computers. In fact, the Agency had accidentally sent to the SSCI staff computers the CIA's own internal examination of its interrogation practices – the so-called Panetta Review, named after then CIA Director Leon Panetta, who had ordered an internal review into the Agency's uses of torture. Amazed and pleased to stumble across this unknown study, which the CIA should have shared with SSCI in the first place, the Committee staff was gratified to find that this in-house study closely paralleled its own findings.