Nextgov/FCW - Authors - Michael Hirsh

NSA Panel Member Recommends Increased Data Collection

Michael Hirsh, National Journal — Mon, 23 Dec 2013 08:05:50 -0500

Michael Morell, the former acting director of the CIA and a member of President Obama's task force on surveillance, said in an interview on Sunday that a controversial telephone data-collection program conducted by the National Security Agency should be expanded to include emails. He also said the program, far from being unnecessary, could prevent the next 9/11.

Morell, seeking to correct any misperception that the presidential panel had called for a radical curtailment of NSA programs, said he is in favor of restarting a program that the NSA discontinued in 2011 that involved the collection of "meta-data" for Internet communications. That program only gets a brief mention in a footnote on page 97 of the task-force report, "Liberty and Security in A Changing World." "I would argue actually that the email data is probably more valuable than the telephony data," Morell told National Journal in a telephone interview. "You can bet that the last thing a smart terrorist is going to do right now is call someone in the United States."

Morell also said that while he agreed with the report's conclusion that the telephone data program, conducted under Section 215 of the Patriot Act, made "only a modest contribution to the nation's security" so far, it should be continued under the new safeguards recommended by the panel. "I would argue that what effectiveness we have seen to date is totally irrelevant to how effective it might be in the future," he said. "This program, 215, has the ability to stop the next 9/11 and if you added emails in there it would make it even more effective. Had it been in place in 2000 and 2001, I think that probably 9/11 would not have happened."

The presidential panel's 304-page report touched off a fresh backlash against NSA surveillance programs, coming only days after a U.S. District judge, Richard Leon, ruled that the agency's regular collection of most Americans' phone records was probably unconstitutional. The panel, which consisted of Morell, former counterterrorism advisor Richard A. Clarke, University of Chicago law professor Geoffrey Stone, Peter Swire, an expert in privacy law at the Georgia Institute of Technology, and former Obama administration regulation czar Cass Sunstein, concluded that the Section 215 program needed to be substantially reined in. It said that the telephone meta-data collection—involving the tracking of numbers of calls and where, when and to whom they're made, without examining content—should be taken out of the hands of the government and left to the service providers, or to a private "third party," and subjected to individual court orders.

"Although this process might be less efficient for the government, NSA Director General Keith Alexander informed the Review Group that NSA itself has seriously considered moving to a model in which the data are held by the private sector," the report said.

But Morell emphasized in a separate appearance on CBS's "Face the Nation" on Sunday that these procedures would slow down necessary data collection only by a few days, and that the panel has called for an emergency exception that would allow the NSA to occasionally bypass a Foreign Intelligence Surveillance Court judge.

The task-force report also delivered an enthusiastic endorsement of another email collection program under Section 702 of the Foreign Intelligence Surveillance Act, which allows the monitoring of suspicious emails abroad. After the panel reviewed 54 counter-terrorism investigations since 2007 "that resulted in the prevention of terrorist attacks in diverse nations and the United States," it concluded that "in all but one of these cases, information obtained under section 702 contributed in some degree to the success of the investigation."

The discontinued program for collecting meta-data on internet communications that Morell was referring to was originally suspended for "compliance" issues in 2009, the report notes, after "it came to light that NSA had inadvertently been collecting certain types of information that were not consistent with the FISC's authorization orders." Alexander re-started that program in 2010 but then let it expire at the end of 2011 because "for operational and technical reasons, the program was insufficiently productive to justify the cost," the report says, adding that "the possibility of revising and re-instituting such a program was left open." The report says that if the email meta-data program is started up again, it "should be governed by the same recommendations we make with respect to the section 215 program."

Morell and other intelligence experts believe that the new and varied threats from extremist and al-Qaida-linked groups from Syria to the ungoverned areas of Afghanistan justify continuing such mass surveillance programs.

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Commentary: A Narrow Victory for NSA Surveillance Opponents

Michael Hirsh, National Journal — Thu, 19 Dec 2013 10:58:05 -0500

Don't give up the crown jewels of America's surveillance program, including bulk collection of telephone data, but add enough new transparency and legal restrictions to fulfill the public's right to privacy and civil liberties. That's the bottom line of a 304-page report released late Wednesday by President Obama's special review commission on the National Security Agency's controversial spying programs.

The report, titled "Liberty and Security in A Changing World," supplies a narrow victory to NSA leaker Edward Snowden and his supporters, but not much more than that, in that its recommendations would leave the NSA's mass surveillance programs largely intact.

Among the important changes recommended were that the controversial collection of mass amounts of data be conducted by the private sector rather than the government; that new rules restrict the ability of the Foreign Intelligence Surveillance Court (FISC) to compel telephone service providers and other third parties to disclose private information to the government and how the FBI issues "National Security Letters" to compel individuals and organizations to turn over private records; and that a public interest advocate be created to appear before the Foreign Intelligence Surveillance Court.

White House spokesman Jay Carney said the administration would likely adopt some recommendations and reject others. The administration has already rejected the panel's proposal to separate control of the NSA and Cyber Command, but it is likely to agree to its recommendation to try to come to new agreements with foreign leaders on limiting surveillance.

On the collection of so-called "metadata," the current system "creates potential risks to public trust, personal privacy, and civil liberty," the report says, adding that it endorsed "a broad principle for the future: as a general rule and without senior policy review, the government should not be permitted to collect and store mass, undigested, non-public personal information about US persons for the purpose of enabling future queries and data-mining for foreign intelligence purposes."

Nonetheless, the panel continued to embrace the need for that program, Section 215 of Foreign Intelligence Surveillance Act, and suggested that such searches be tailored only under a rather vague standard, in order "to serve an important government interest." It also affirmed the need for Section 702, which authorizes the search of emails abroad.

The report was produced by a relatively intelligence-friendly group of former officials and legal experts consisting of ex-counterterrorism coordinator Richard A. Clarke; Michael Morell, the former deputy director of the CIA; Geoffrey Stone, a University of Chicago law professor; Peter Swire, an expert in privacy law at the Georgia Institute of Technology, and Obama's former regulation czar, Cass Sunstein.

Supporters of the NSA program say that Section 215, which allows for vacuuming of telephonic data, is needed as a discovery tool in order to discover new terrorist plots at a time when the threat is far more diffuse and harder to detect.

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Will Social Media Get Obama Off the Hook on Syria?

Michael Hirsh, National Journal — Fri, 30 Aug 2013 14:46:48 -0400

President Obama was well aware that he had a credibility problem in making the case against Syria over its alleged chemical-weapons use because of the bad intelligence on Iraq a decade ago. The British Parliament reminded him of this problem Thursday when it shockingly rejected military action in a close vote. And in his powerful indictment of Syrian dictator Bashar al-Assad on Friday as a "thug and a murderer," Secretary of State John Kerry said the administration was "more than mindful of the Iraq experience. We will not repeat that."

So it was not surprising, perhaps, that both in Kerry's presentation and in the heavily redacted intelligence summary released by the administration ahead of expected air strikes against Syria, U.S. officials relied greatly on social-media and Internet videos to supplement the evidence gathered from more-traditional sources.

That was a striking contrast to the Iraq experience, when it was revealed only later that much of the shoddy intelligence used to justify that war relied on super-secret sources such as "Curveball," the code name for an Iraqi defector who falsely claimed that Saddam Hussein had biological weapons.

Friday's intelligence summary refers to "multiple streams of intelligence," including satellite detections, as backing up the claim that the Syrian regime killed more than 1,400 people, including at least 426 children, in a chemical-weapons attack on Aug. 21. But as part of that the summary refers in detail to "local social-media reports" that indicated the chemical attack began at 2:30 a.m., and "within the next four hours there were thousands of social-media reports on this attack from at least 12 different locations in the Damascus area," the report says. "Multiple accounts described chemical-filled rockets impacting opposition-controlled areas."

The report goes on to say that the U.S. intelligence community has "identified one hundred videos attributed to the attack, many of which show large numbers of bodies exhibiting physical signs consistent with, but not unique to, nerve-agent exposure." It added that "the Syrian opposition does not have the capability to fabricate all of the videos, physical symptoms verified by medical personnel and NGOs, and other information associated with this chemical attack."

Kerry, in his statement, said that just 90 minutes after the attack, "all hell broke loose on social media…. It was ordinary Syrian citizens who reported all of these horrors."

It remains to be seen whether the administration's case against Assad will stand up well in world opinion. But taken together with the remarkable way that, back in April, Boston police and federal authorities collected private video images and called upon the public to relay information about the Boston Marathon suspects on cell phones and social media, the Obama administration's intelligence case amounts to a new kind of evidence for the age of omnipresent data collection.

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Analysis: How America's Top Tech Companies Created the Surveillance State

Michael Hirsh, National Journal — Fri, 26 Jul 2013 10:03:40 -0400

With Edward Snowden on the run in Russia and reportedly threatening to unveil the entire “blueprint” for National Security Agency surveillance, there’s probably as much terror in Silicon Valley as in Washington about what he might expose. The reaction so far from private industry about the part it has played in helping the government spy on Americans has ranged from outraged denial to total silence. Facebook’s Mark Zuckerberg, he of the teen-nerd hoodie, said he’d never even heard of the kind of data-mining that the NSA leaker described—then fell quiet. Google cofounder Larry Page declared almost exactly the same thing; then he shut up, too. Especially for the libertarian geniuses of Silicon Valley, who take pride in their distance (both physically and philosophically) from Washington, the image-curdling idea that they might be secretly in bed with government spooks induced an even greater reluctance to talk, perhaps, than the Foreign Intelligence Surveillance Act, which conveniently forbids executives from revealing government requests for information.

But the sounds of silence from the tech and telecom sectors are drowning out a larger truth, one that some of Snowden’s documents might well supply in much greater detail. For nearly 20 years, many of these companies—indeed most of America’s biggest corporate sectors, from energy to finance to telecom to computers—have been doing the intelligence community’s bidding, as America’s spy and homeland-security agencies have bored their way into the nation’s privately run digital and electronic infrastructure. Sometimes this has happened after initial resistance, and occasionally under penalty of law, but more often with willing and even eager cooperation. Indeed, the private tech sector effectively built the NSA’s surveillance system, and got rich doing it.

Books have been written about President Eisenhower’s famous farewell warning in 1961 about the “military-industrial complex,” and what he described as its “unwarranted influence.” But an even greater leviathan today, one that the public knows little about, is the “intelligence-industrial complex.”

The saga of the private sector’s involvement in the NSA’s scheme for permanent mass surveillance is long, complex, and sometimes contentious. Often, in ways that appeared to apply indirect pressure on industry, the NSA has demanded, and received, approval authority—veto power, basically—over telecom mergers and the lifting of export controls on software. The tech industry, in more than a decade of working-group meetings, has hashed out an understanding with the intelligence community over greater NSA access to their systems, including the nation’s major servers (although it is not yet clear to what degree the agency had direct access). “I never saw [the NSA] come and say, ‘We’ll do this if you do that,’ ” says Rebecca Gould, the former vice president for public policy at Dell. “But the National Security Agency always reached out to companies, bringing them in. There are working groups going on as we speak.”

Indeed, the cooperation was usually “voluntary” in large part because companies couldn’t afford to seem uncooperative, says another private-sector official who would speak about classified issues only on condition of anonymity. “The ways that pressure works in Washington are very subtle,” he says. “No one’s getting bribed, or punished outright. But it’s the good little Indian that gets rewarded. And these companies needed the goodwill of the NSA and other agencies.”

Jeffrey Smith, a former general counsel at the CIA, says, “Generally as the IT community matured in this country, a number of things happened. They all opened Washington offices … and they came to an understanding, after some initial arrogance, that they needed to deal with the government.” The companies also came to understand that, in a very real way, they were now part of the nation’s infrastructure, and they would need plenty of help from the government in securing it.

So for the tech and telecommunications industries, the relationship has always been a delicate balance of patriotism and public image, and a public-relations tightrope walk between getting along and appearing not to bend to the NSA’s demands. “They have been, on the whole, cooperative,” says Greg Garcia, who served as the Homeland Security Department’s first Internet czar under President George W. Bush. “But at the same time, they are wary of being seen as instruments of the government.”

That wariness continues. The tech companies appear to understand that by keeping the whole process of cooperation supersecret, they have jeopardized their reputations, and possibly violated the law. After the first stories about the NSA’s “Prism” Internet surveillance program came out in The Guardian and The Washington Post in June, identifying some of the most recognizable names in American corporate culture—Apple, Microsoft, Google, Facebook, Yahoo, and AOL, among others—as having negotiated arrangements with government surveillance agencies, executives at some of these tech companies expressed surprise at the extent of the program. But on July 18, these same companies—among many others, including Reddit, Twitter, and Tumblr—sent a letter to President Obama and senior intelligence and oversight officials in the executive branch and Congress asking permission to make public the number of government requests for information about their users, as well as the number of individuals, accounts, or devices for which information is requested.

Company officials are also appealing to the Foreign Intelligence Surveillance Court to let them tell their side of the tale. In some cases, they want to show they were ultracautious about what they let the government see. Yahoo, for example, is asking a judge to declassify information about Prism from a 2008 case, in which the company challenged the NSA’s surveillance proposals but was overruled by the FISA court.

One of the more recent reports from The Guardian, which has had unique access to NSA documents because of the personal relationship between its correspondent Glenn Greenwald and Snowden, said Microsoft “has collaborated closely with U.S. intelligence services to allow users’ communications to be intercepted, including helping the National Security Agency to circumvent the company’s own encryption.” The documents show, among other things, that Microsoft effectively helped the NSA bypass the company’s own security features so the agency would be better able to intercept Web chats on the new Outlook.com portal.

In an interview with National Journal, former NSA Director Michael Hayden indirectly confirmed Microsoft’s involvement. “This is a home game for us,” Hayden says. “Are we not going to take advantage that so much of it goes through Redmond, Washington? Why would we not turn the most powerful telecommunications and computing management structure on the planet to our use?”

Most of this co-opting of the private sector has happened with the full-throated support of both Republicans and Democrats in Congress, again behind closed doors. Today, Hayden says, the agency itself is all but indistinguishable from the private sector it has exploited. Its best technology is designed by the private sector—“There isn’t a phone or computer at Fort Meade that the government owns,” he says—and its surveillance systems are virtually interwoven with their products. The huge controversy over Snowden’s employment by one of these private contractors, Booz Allen Hamilton, was just the barest tip of the iceberg, according to intelligence and industry officials. One by one, Hayden says, the NSA contracted with companies to “make them part of our team,” as he puts it.

Among these contributing companies reportedly is Palantir Technologies, the Palo Alto, Calif., company that The New York Times and other news outlets have identified as a close associate of the NSA. Another is Eagle Alliance, a joint venture of Computer Sciences and Northrop Grumman that runs the NSA’s IT program and describes itself on its website as “the Intelligence Community’s premier Information Technology Managed Services provider.” Because of these close relationships, no door revolves more quickly in Washington than the one between these companies and the intelligence community. Booz Allen’s current vice chairman, Mike McConnell, was director of national intelligence in the George W. Bush administration and, before that, director of the NSA. The current director of national intelligence, James Clapper, is also a former Booz Allen executive.

Read the full story at NationalJournal.com.

(Image via Flickr user bytemarks)

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Silicon Valley is More Involved in National Security Than You Think

Michael Hirsh, National Journal — Mon, 10 Jun 2013 07:03:10 -0400

Some of America's biggest social media and tech companies have been denying in recent days that they were aware of the National Security Agency's recently-exposed "PRISM" and telephone monitoring programs. But these denials obscure a larger truth: The government's massive data collection and surveillance system was largely built not by professional spies or Washington bureaucrats but by Silicon Valley and private defense contractors.

So says Michael V. Hayden, the retired Air Force general who as director of the NSA from 1999 to 2006 was a primary mover behind the agency's rebirth from Cold War dinosaur into a post-9/11 terror-detection leviathan with sometimes frightening technical and legal powers.

After many false starts, that transformation was achieved largely by drafting private-sector companies that had far more technical know-how than did the NSA, and contracting with them to set up and administer the technical aspects of these surveillance programs, Hayden told National Journalin an interview Sunday.

"There isn't a phone or computer at Fort Meade [NSA headquarters] that the government owns" today, he says.

That doesn't quite square with the popular image of the NSA as a shadowy confection of Big Brother and Big Government. Nor with the description of PRISM as merely "an internal government computer system," as Director of National Intelligence James Clapper called it over the weekend.

Among these contributing companies reportedly is Palantir Technologies, the Palo Alto, Calif., company that several news outlets have identified as a close associate of the NSA's. Another is Eagle Alliance, a joint venture of Computer Sciences Corp. and Northrup Grumman that runs the NSA's IT program and describes itself on its website as "the Intelligence Community's premier Information Technology Managed Services provider." ("We made them part of the team," says Hayden.) Another is Booz Allen Hamilton, the international consultancy for which the reported whistleblower in the NSA stories, contractor Edward Snowden, began working three months ago. In 2002, Booz Allen Hamilton won a $63 million contract for an early and controversial version of the current data-mining program, called Total Information Awareness, which was later cancelled after congressional Democrats raised questions about invasion of privacy in the early 2000s. The firm's current vice-chairman, Mike McConnell, was DNI in the George W. Bush administration and, before that, director of the NSA. Clapper is also a former Booz Allen executive.

In its outreach to private industry, the NSA occasionally overreached. The most notorious example was the $1.2 billion "Trailblazer" program developed in the early-to-mid-2000s by SAIC and other companies, which led to the notorious attempted prosecution of another whistleblower, an NSA career employee, who sought to expose the program as a wasteful failure. "One of the things we tried to do with Trailblazer was to hire out a solution to our problems," Hayden says. "It was kind of a moonshot."

Afterwards, Hayden said, "we began to do this in increments," still employing private-sector firms. "It's the companies responding to your requests… You look for a Palantir, and you make them part of our team."

It's questionable whether any of the nine major U.S. Internet companies named in the PRISM stories were, like some of these contractors, also willing parts of the NSA "team." For the tech industry, especially the social-media companies, the controversy over the extent of the NSA's domestic data gathering has become an acute embarrassment. The NSA is said to have tapped into servers of the nine companies, but the heads of two of the biggest, Facebook founder Mark Zuckerberg and Google co-founder Larry Page, issued near-identical statements late last week saying neither of them had ever heard "of a program called PRISM" until the press reports.

Yet for Hayden, who was one of the longest-serving NSA directors ever, remaking the stodgy Cold War spy agency into a private-tech-sector enterprise was a logical outgrowth of dramatic changes in the nature of both threats and technology.

Well before 9/11, he says, he realized that as the Internet era was taking off, the NSA was failing in its mission to collect signals intelligence, or sigint, and effectively "going deaf," in the critique of the time. Hayden admitted this, surprisingly, in an open session of the House Permanent Select Committee on Intelligence in 2000, telling the members what he thought needed to happen if the NSA was going to get in front of the data. "This agency grew up in the Cold War. We came from the world of ENIGMA [the Nazi encryption device whose code was broken by the allies], for God's sakes. There were no privacy concerns in intercepting German communications to their submarines, or Russian microwave transmissions to missile bases," he says. "But now, I told them, all the data you want to go for is coexisting with your stuff. And the trick then, the only way NSA succeeds, is to get enough power to be able to reach that new data but with enough trust to know enough not to grab your stuff even though it's whizzing right by."

That is still the issue today, Hayden says. And while he admits that critics have raised some legitimate concerns about proper monitoring and intrusions into privacy, inadvertent or not, he believes there are now adequate safeguards against undue intrusion into citizens' records. Hayden adds: "If we weren't doing this, there would be holy hell to raise." He notes that the 2002 joint Senate-House inquiry into 9/11 criticized the NSA for being "far too cautious." And as controversial as they might seem, programs such as PRISM were always intended to resolve the conflict he had laid out in 2000: how to monitor overseas conversations that are often routed through servers in the United States. "This is a home game for us," says Hayden. "Are we not going to take advantage that so much of it goes through Redmond, Washington?"

During most of the Cold War, he says, the NSA was the cutting-edge innovator, helping to create the Internet and American computer industry back in the 1950s and '60. "We were America's Information-Age enterprise during America's Industrial Age. We had the habit of saying if we need it, we're going to have to build it," Hayden says. "But in the outside world there was a technological explosion in the two universes that had been at the birth of the agency almost uniquely ours: telecommunications and computers."

By the time 9/11 arrived, the American tech industry was building the best stuff and had the best minds, so the NSA no longer had any choice but to enlist Silicon Valley's help. Signals intelligence "has to look like its target. We have to master whatever technology the target is using to turn his beeps and squeaks into something humanly intelligible," Hayden says. Not only was much of this traffic being routed through the United States, but the tech sector knew how to penetrate and "mine" it. He concludes: "Why would we not turn the most powerful telecommunications and computing management structure on the planet to our use?"

The NSA did. But now some of these companies may come to regret what is emerging as a public relations disaster.

(Image via Bruce Rolff/Shutterstock.com)

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What’s in the Secret Drone Memos?

Michael Hirsh and Kristin Roberts, National Journal — Fri, 22 Feb 2013 15:48:56 -0500

Despite President Obama’s pledge in his State of the Union address to make the drone program “even more transparent to the American people and to the world,” his administration continues to resist efforts by Congress, even from fellow Democrats, to obtain the full range of classified legal memos justifying “targeted killing.”

A key reason for that reticence, according to two sources who have read the memos or are aware of their contents, is that the documents contain secret protocols with foreign governments, including Pakistan and Yemen, as well as “case-specific” details of strikes.

A legal expert outside the government who is intimately familiar with the contents of the memos said the government-to-government accords on the conduct of drone strikes are an important element not contained in the Justice Department “white paper” revealed recently by NBC News. He said it is largely in order to protect this information that the targeted-killing memos drafted by Justice’s Office of Legal Counsel are not being released, and that even the Senate and House Intelligence committees have been allowed to examine only four of the nine OLC memos.

“That is what is missing from the white paper but forms a core part of the memos,” the expert toldNational Journal, speaking on condition of anonymity because the information is classified. He said the administration believes that the protocols would almost certainly leak to the public if they were shared with Congress.

A senator who sits on the Intelligence Committee and has read some of the memos also said that the still-unreleased memos contain secret protocols with the governments of Yemen and Pakistan on how targeted killings should be conducted. Information about these pacts, however, were not in the OLC opinions the senator has been allowed to see. The senator, who also would speak to National Journalonly on condition of anonymity, said the only memos that the committee has been given represent mainly legal analysis justifying the drone strikes, and that the rest contain “case-specific” facts about operations.

It’s not clear how many such secret government-to-government protocols exist. At least some were made with since-deposed dictators such as Ali Abdullah Saleh of Yemen. Others may have been signed with the leaders of Algeria and Mali, the legal expert said. Given the widespread unpopularity of the drone program, the disclosure of these agreements could prove extremely embarrassing both for the United States and partner governments. That’s especially true of Pakistan, where Islamabad’s troubled military alliance with Washington and an intense U.S. drone campaign against Taliban and al-Qaida targets have provoked fierce anti-Americanism.

Even so, last fall, the newly elected leader of Yemen, Abdu Rabbu Mansour Hadi, actually endorsed the U.S. drone program that takes place within his borders. “They pinpoint the target and have zero margin of error, if you know what target you’re aiming at,” Hadi said at the Woodrow Wilson Center in Washington.

Asked about the existence of such protocols, Tommy Vietor, a White House spokesman, said he had no comment but added, “We are having conversations with members of Congress about their requests, and we will continue those conversations.”

The memos released so far largely deal with the legal reasoning behind targeting U.S. citizens abroad who have joined hostile action against the United States, especially radical cleric Anwar al-Awlaki, who was killed by U.S. drone strikes, along with his teenage son, in 2011. The Justice Department white paper summed up many of those arguments, which were drafted by former OLC staffers Martin Lederman and David Barron, among other lawyers. The white paper concludes, controversially, that the U.S. government can order the killing of American citizens if they are believed to be senior leaders of al-Qaida or "an associated force," even if there is no evidence of an imminent plot against the U.S.

In a statement last week, Senate Intelligence Committee Chairwoman Dianne Feinstein, D-Calif., said her staff knew of a total of nine OLC memos but had only seen four of them. She said it was only in recent days that “senators on the committee were finally allowed to review two OLC opinions on the legal authority to strike U.S. citizens.” Feinstein added, “We have reiterated our request for all nine OLC opinions—and any other relevant documents—in order to fully evaluate the executive branch’s legal reasoning, and to broaden access to the opinions to appropriate members of the committee staff.”

An Obama administration official who is familiar with the negotiations with Feinstein’s committee indicated that the White House was miffed at efforts by the senator and her staff to obtain all the memos at once, because such efforts play into the Republican strategy of using the dispute to delay the confirmation of John Brennan, Obama’s nominee to head the CIA and the main architect of the drone program, as well as Chuck Hagel as Defense secretary.

“These guys don’t even know what the hell they’re asking for,” the official said. “They think they can ‘reverse-engineer’ the [drone] program by asking for more memos, but these are not necessarily things that exist or are relevant.... What they’re asking for is to get more people read into very sensitive programs. That’s not a small decision.”

The administration is engaged in a serious internal debate over the release of more information, with Harold Koh, the State Department legal adviser, said to be in favor of doing so and other officials aligned with the CIA still somewhat opposed. Under the CIA, the program has been covert, making the administration’s efforts at transparency all the more difficult—one reason that Brennan is said to want to shift responsibility over to the Pentagon.

A former State Department legal counsel said that even if the memos contain secret protocols, there’s no reason why that information couldn’t be “redacted” and the rest of the memos released. “The White House and DoJ have redacted especially sensitive information in other cases,” he said, in particular during the George W. Bush administration.

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John Brennan’s Love-Hate Relationship With Drones

Michael Hirsh, National Journal — Thu, 07 Feb 2013 15:57:28 -0500

With President Obama’s CIA nominee, John Brennan, in the spotlight this week, Washington is engaged in a big debate over the ethics of covert drone warfare. But like it or not, “targeted killing” will continue and perhaps even increase in years to come. The more realistic questions to ask about what some Obama administration officials call “the new normal” of warfare are these: Who’s really going to run the drone program — the White House, the Pentagon, or the CIA? And how long is it likely to last?

And you can depend on this: As intense as the public debate over drones has been, the internal bureaucratic battle will be even more tumultuous.

Brennan had indicated that he wanted to see big changes in control of the drone program even before his confirmation hearing on Thursday. Under his watch as White House counterterrorism coordinator, Brennan’s former employer, the CIA, has become much more of a “paramilitary” organization, and he wants to return the agency to its roots. “John thinks that the traditional role of the CIA is to be the biggest, baddest, most effective human-intelligence collection facility on the planet,” says a senior administration official, who would discuss Brennan’s views only on condition of anonymity. “That’s the tradition of the CIA he grew up in, and that’s what he thinks the CIA in its essence should be.”

“A lot of what’s driving Brennan, from what I’ve heard, is that he feels the [drone] program has run its course as a CIA operation,” says Philip Giraldi, a former CIA counterterrorism official. “He feels that basically the collateral damage is causing more problems than any success coming out of the program.” Meanwhile, the debate over the ethics — and, perhaps more significantly, the efficacy — of targeting rogue American citizens and others abroad is going to grow more intense, too. “My sense is there is a growing recognition that these strikes can hurt organizations but they are rarely the main reason for the end of the organization,” says Seth Jones, a counterterrorism expert at the Rand Corp.

According to other people who know Brennan’s thinking well, he also believes that moving drones to the Defense Department will allow greater congressional and public scrutiny. He fears that if the United States does not lead in developing an ethical and legal policy framework on the use of drones, decades’ worth of international law will be undermined and other countries that are close to developing their own drones, particularly China and Russia, will abuse them. The nominee to head the Pentagon, former Sen. Chuck Hagel, R-Neb., is nominally in support of targeted strikes, but he is also keenly aware of the possibly perilous precedent that’s being set, and he is concerned about the backlash from “collateral damage” when innocents are killed, possibly creating even more jihadists than are being taken out.

Obama himself, while more than tripling the number of drone strikes from the previous administration, has given his bureaucrats’ considerable ammunition for the battle over who runs the show and how. The president wants to put a “legal architecture in place … to make sure that not only am I reined in, but any president is reined in,” as Obama said on Jon Stewart’s show (of all places) last year. At the same time he’s trying to avoid going down in history as the “drone president,” emphasizing to his team economic development and diplomacy over “kinetic action” as ways of transforming places like Mali from terrorist havens into viable polities. “The president is not turning to his team and saying where do we put next drone base to solve the North Africa problem,” the senior administration official says. “Drones aren’t a policy. They are a tool. The president’s directive to all of us is to think bigger, and with regard to Mali or Somalia think long term.”

Obama has also indicated he understands the potential moral quandary if covert drone strikes become a new permanent way of war, declaring in his Inaugural Address that “enduring security and lasting peace do not require perpetual war.”

The bureaucratic fight is already under way. In his written answers to the Senate Intelligence Committee, Brennan said that targets are picked “on a case-by-case basis through a coordinated interagency process” involving the Pentagon, CIA, State Department, and other agencies. But in fact, behind the scenes the CIA has not always cooperated in sharing the vetting process, especially in Pakistan, and Brennan is likely to change that. One major underlying issue is which agency—the CIA or Defense— operates under tighter rules for disclosure and congressional notification. On one hand, the military does conduct itself under rules of engagement that are more spelled out and governed by clear codes, such as the Uniform Code of Military Justice. On the other hand, covert war by the military has in some ways been conducted under even less scrutiny in recent years, particularly when it comes to special operations.

Some critics, such as former Deputy Defense Secretary John Hamre, have worried that special ops now has generic authority to deploy where it wants without case-by-case orders. Without proper civilian oversight, a bin Laden-style success can easily become a "Black Hawk Down." According to a senior CIA lawyer, the statutes reining in the CIA, which date from the famous Church Committee hearings of the 1970s, have set up effective procedures under Title 50 of the National Security Act. "Now, almost 40 years later, we're in a situation where the CIA has to go through this bureaucracy, and at the same time you have the [special-operations] military doing all sorts of things that present worse types of concerns with much less congressional notification," he said.

The only way to lay all the ethical and bureaucratic questions to rest is to declare, at some point, that the war against al-Qaida is over. But that too is the subject of debate. With new splinter groups rising in the aftermath of the Arab Spring, that’s unlikely to happen in the foreseeable future. And administration officials tend to contradict each other occasionally about how they see the end game. In a speech last November, Jeh Johnson, the Pentagon general counsel, said that the “tipping point” for the end will come when “so many of the leaders and operatives of al-Qaida and its affiliates have been killed or captured [that] the group is no longer able to attempt or launch a strategic attack against the United States.”

But the senior administration official told National Journal on Thursday that the new dangers emerging from groups such as al-Qaida in the Islamic Maghreb do not focus on the U.S. homeland. “What Americans need to understand over the long term is that there will likely be more attacks like we saw in Algeria and Benghazi. Al-Qaida has metastasized and now has affiliates in more places, but ones that unlike core al-Qaida don’t necessarily have an interest in striking the U.S. homeland.”

And so the drone debate will drone on, as long as the war does. And that too will be a long time.

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