TVO - "Interrogating Torture"

by Rick Francona

I appeared on the TVO (Ontario's public television network) show The Agenda with Steve Paikin on April 24 in Toronto.

The subject of the program was "Interrogating Torture."

The panel included Mark Bowden (Blackhawk Down), Melissa Williams, Ramin Jahanbegloo and myself.

The video can be seen by clicking here. The post-show web chat can be seen by clicking here.

Again, the terminology

by Rick Francona

Once again, the media has confused the terms used to describe various players in the intelligence game. On the face of it, that is not surprising - it happens virtually every day in the mainstram media. What is surprising is the use of the wrong term on the cover of an magazine associated with the intelligence community.

The March/April issue of Military Geospatial Technology, a publication focusing on military and DHS intelligence, features a cover article about Lieutenant General Michael Maples, Director of the Defense Intelligence Agency. The title of the article: Intelligence Agent. (You can read the online version here.)

As any professional human intelligence (HUMINT) officer will tell you, the term "intelligence agent" is not the correct term to describe LTG Maples. The general may be called an intelligence officer, although his background barely qualifies him for the title. That's not to slight his career, it's just not a professional intellgence career. In any case, he is not an intelligence agent.

An intelligence agent is an asset who is working for an intelligence officer, usually a clandestine arrangement where a person agrees to provide intelligence information in response to taskings from a HUMINT case officer. That agent can also be called a spy. Intelligence officers are neither agents nor spies.

For one of my earlier pieces on this subject, see "CIA Agent - Let's Get the Terminology Straight."

Israelis ask for release of Jonathan Pollard - again

by Rick Francona

During President Bush's recent trip to the Middle East, the Israelis again raised the now tiresome request that we release Jonathan Pollard. Pollard was a civilian employee of the U.S. Navy intelligence service, convicted of spying against the United States for Israel and sentenced to life imprisonment.

He was arrested in 1985 and although he pleaded guilty and cooperated, the information he illegally provided to the Israelis was potentially so damaging to our national security and intelligence operations, the judge sentenced him to life in prison and recommended that he never be paroled. The actual damages have never been made public, but were so great that when President Clinton was asked by the Israelis to free Pollard, seven former Secretaries of Defense signed a letter asking him not to do it.

There is a group of Pollard supporters who want the felon released. They have a website - Justice for Jonathan Pollard - which is full of misleading information and comparisons to others who have been sentenced for the same crime. Although they claim that Pollard has been sentenced more harshly than others, they don't mention that others in the same class as Pollard - CIA officer Adrich Ames and FBI agent Robert Hanssen - were also sentenced to life in prison. My response to those lesser sentences - the judges in those cases got it wrong; the judge in the Pollard case (as well as with Ames and Hanssen) got it right.

During the President's visit to Israel, there was a campaign to highlight the plight of the Israeli spy. A member of the Knesset, Shas Party chairman Eli Yishai, presented the President a two letters asking that he free Pollard. One was from Israel's former chief rabbi, and the other from Pollard's wife Esther. The minister hinted that Bush's response would have an impact on Israel's consideration of American requests for Israeli cooperation with the Palestinians. The above posters (in English and Hebrew) appeared all over the country. Disgraceful, comparing the American president with Hamas leader and Palestinian prime minister Isma'il Haniyah and Hizballah leader Hasan Nasrallah.

What arrogance. In reality, bringing up Pollard likely only underscored American resolve to punish the traitor that is Jonathan Pollard. Many Americans do not want Pollard to be allowed parole or pardon, only to move to Israel and be treated as a hero. After all, in 1995, Israel granted Jonathan Pollard Israeli citizenship and in 1998 acknowledged that he had been an Israeli intelligence asset.

Pollard is a traitor who sold out his country for money. He worked in the intelligence community (I won't insult my former colleagues by calling him an intelligence officer) and knew the rules. It doesn't matter that he spied for an "ally" - the information he gave far exceeded the scope of our intelligence relationship with Israel.

Pollard's wife claims he is "rotting in an American prison." Actually, he's in a low/medium security federal prison in Butner, North Carolina. While it is incarceration, it's not the hard time an active duty Navy officer would be doing at Fort Leavenworth. If it was up to me, he'd be bolted into a cell at the Supermax in Florence, Colorado.

Esther, I missed the part where I am supposed to care about or feel sympathy for a traitor who betrayed my country.

Rick Francona is a retired USAF intelligence officer with over 25 years of operational assignments with the National Security Agency, the Defense Intelligence Agency and the Central Intelligence Agency in the Middle East. He is an MSNBC military analyst.

A new D/DNI for Collection - when are we going to learn?

In December of 2007, the Director of National Intelligence announced the appointment of a new Deputy Director of National Intelligence for Collection - Glenn A. Gaffney. According to the DNI website, the D/DNI for Collection is to:

"...coordinate collection throughout the Intelligence Community under the authorities of the DNI and ensure that the National Intelligence Strategy (NIS) priorities are appropriately reflected in future planning and systems acquisition decisions. The Office of the DDNI for Collection looks across the entire collection business enterprise to develop corporate understanding of needs, requirements, and capabilities to ensure that a holistic view is taken on current and future collection systems.

Give me a break. I despise this bureaucrat-speak - what it says is the D/DNI for Collection is primarily concerned with the technical collection of intelligence - signals intelligence (SIGINT) and imagery intelligence (IMINT). The phrase "...future planning and systems acquisition decisions" show that technology is the focus, not intelligence.

Collection is focused on technology at the expense of the area in which we really need to put the lion's share of our efforts - human intelligence (HUMINT), or as we used to say in the field, "lies and spies." All the pictures and intercepted communications that our sophisticated systems collect are terrific, but a spy - yes, a traitor working for us - with access, is priceless. Americans prefer the technological approach, not getting our hands dirty. We case officers always considered HUMINT the combat arms of the collection disciplines - out there face to face with the targets, not taking their pictures from space or intercepting their communications from afar.

Then we have the phrase "...collection business enterprise to develop corporate understanding of needs, requirements, and capabilities to ensure that a holistic view is taken on current and future collection systems." A holistic view? Now the bureaucracy has really taken over - we're trying to collect denied information from the bad guys, not have a zen business meeting in Washington. The use of the term "system" reinforces the technical nature of the focus - we should be talking about how recruit better assets and agents.

Gaffney has a degree in engineering science with an emphasis in astrophysics and spent years in the CIA's Science and Technology directorate. I am sure Mr. Gaffney is a fine manager and a competent engineer, but what we need is a case officer - an officer who has convinced someone to betray their country for us - to oversee the recruitment of better spies.


Rick Francona is a retired USAF intelligence officer with over 25 years of operational assignments with the National Security Agency, the Defense Intelligence Agency and the Central Intelligence Agency in the Middle East. He is an MSNBC military analyst. See http://www.rickfrancona.com/.

Intelligence politicized - again?

Recent Congressional calls for yet another investigation, this time into the destruction of CIA terrorist interrogation tapes, highlights another common misunderstanding of the U.S. intelligence community: the difference between the overall intelligence community and the Central Intelligence Agency. While this is understandable for the average citizen not to be clear on that difference, it is puzzling to hear it from a member of the House Permanent Select Committee on Intelligence (HPSCI).

The Honorable Peter Hoekstra, one of many seeking an investigation, has been a member of the HPSCI since 2004. So why is he demanding that the Director of National Intelligence (DNI) be held responsible and threatening with subpoenas, when it was the deputy director of operations at the CIA who ordered the destruction of the agency's own interrogation tapes. Has he learned so little about intelligence organizations and the activities of the very community he is helping oversee?

The Intelligence Reform and Terrorism Prevention Act of 2004 created the office of the Director of National Intelligence and subordinated the CIA once and for all under a national office, on par with the other intelligence agencies (DIA, NSA, NGA, etc). Whether CIA has accepted this arrangement remains debatable and Hoekstra's description of intelligence community leaders as "arrogant" may well fit the CIA leadership of 2005, when the tapes were destroyed. No doubt certain elements within the agency will continue to consider CIA "first among equals" and act accordingly.

While congressional oversight of the intelligence community mandates that the HPSCI and the Senate Select Committee on Intelligence (SSCI) must be notified of significant intelligence activities in a timely manner, it is debatable whether the destruction of the interrogation tapes actually rose to the level of significance requiring congressional notification. Much depends on how routine such actions are in other cases and if the tapes were destroyed after Congress requested them as evidence. Otherwise much of this latest congressional "outrage" could be viewed as yet another incident of playing politics with intelligence.

Any intelligence professional will view such "operational" documentation as highly sensitive and generally not releasable outside the organization. Consumers of any intelligence resulting from these interrogations, including congressional committees, should be concerned only with the end product, not the operational source information and methodology. The fact that some disagree with suspected methods and are eager to use such suspicions for political gains does not entitle them to this information. When dealing with national security and intelligence issues, there are good reasons for the classification and limited access to this information. This is also why each intelligence agency employs ever increasing legal staffs to review and approve specific activities. Let's not cripple ourselves in the pursuit of political correctness.

The possibility of politicizing intelligence also comes to mind with the release of the latest National Intelligence Estimate (NIE) on Iran's nuclear program. The 2007 NIE assesses "with high confidence that in fall 2003, Tehran halted its nuclear weapons program." Contrast that with the 2005 NIE assesses "with high confidence that Iran currently is determined to develop nuclear weapons." What is really behind this reversal? Should we assume an intelligence failure in 2005 or in 2007? Are there elements within CIA who disagree with national security policy and are using the NIE process to pursue political preferences?

Inquiring minds want to know...

Beyond debate - FISA Court ruling

Before citizens become outraged about the Foreign Intelligence Surveillance Court's recent refusal to release classified documents - let's take a deep breath and resist the media frenzy. The fact that this is about classified information should be a sufficient indicator. There are good reasons why certain national security-related information is not available to the general public, let alone potential adversaries.

The government is charged with the safety of our citizens and a potential compromise of "sources and methods" must always be a serious consideration when safeguarding intelligence information. Without these safeguards effective intelligence operations are impossible and endanger national security. Forcing the FISA court to reveal its deliberations over the intercept of terrorist communications would enable any adversary to determine how to circumvent U.S. intelligence collection. And if that is too esoteric - let's remember that preserving valuable intelligence resources funded by taxpayers is just as important. Granted, the U.S. intelligence budget, estimated near $40 billion, may not be the most significant portion of the national budget, but it is definitely relevant to the average taxpayer.

Regardless of occasional past transgressions, the U.S. intelligence community does classify sensitive information responsibly. More importantly, all of this is overseen by the two congressional watch dogs: the Senate Select Committee on Intelligence (SSCI) and the House Permanent Select Committee on Intelligence (HPSCI). Since these committees consist of our elected representatives, citizens' concerns should be adequately addressed. After all, that is what representative government is all about.

The Foreign Intelligence Surveillance Court, established by the Foreign Intelligence Surveillance Act (FISA) of 1978, has not released classified information in the past, nor should it now - for whatever reason. Neither is the ACLU in any way entitled to classified information, however much it considers itself a self-appointed citizen watchdog. Use of classified national security and intelligence information for political gains has never been legal or even acceptable and is not so now, despite intensified attempts in recent years.

"Beyond debate!" said U.S. District Judge John Bates. I could not agree more.

The Iran NIE: the British weigh in against America...

Just a week after the American intelligence community released a new National Intelligence Estimate on Iran that reverses the assessment of Iran’s nuclear program, British intelligence officials have stood with their Israeli counterparts in opposition. The Israeli and British services – both professional organizations with excellent sources and reputations – still believe that Iran is determined to develop nuclear weapons.

U.S. intelligence would be well-advised to listen to their counterparts in London and Tel Aviv. The British have long-standing ties to Iran, as well as an embassy in Tehran – they have much better access than we do. Likewise, Israel has the advantage of its population of Iranian Jews, most of whom arrived in Israel after the 1967 war, with contacts in Iran. If both countries’ services believe Iran still has an active nuclear weapons program, perhaps our intelligence services should listen.

Good idea, right? Not so fast – intelligence services worldwide are reluctant to share information. Well, more accurately, they are reluctant to share their sources. Most of the time, it is not the information that requires protection, it is the need to protect the source that causes services to hoard information. For example, if the British had recruited an Iranian nuclear engineer who could provide information on the problems Iran is experiencing with their uranium enrichment centrifuges and he was easily identifiable as the source, they would be reluctant to provide that information to cooperating services – the Americans and Israelis – since that could lead to his identity.

Source protection is the paramount issue among “case officers” – intelligence operatives who spot, assess, recruit and manage spies. Give too much information away and you run the risk of “losing” your source. “Losing” your source generally means the source is either arrested and imprisoned or executed – you can imagine the treatment in Iran. Take it from an old case officer, we want to make sure we conduct our operations securely so our sources are not “compromised” – spy-speak for discovered and arrested.

On the other side, analysts are concerned about information, not the source. That’s why each report, each piece of information collected is classified at the appropriate level to protect the source. It usually is the source that is sensitive, not always the information itself. If the information could only be derived from a certain source, any compromise of that information places the source in jeopardy.

Because intelligence services jealously guard their sources, they are reluctant to share that information with other services. That’s why the British and the Israelis may have different, complementary, possibly contradictory information – they have different sources, and they may be reluctant to provide information from those sources.

Every country has information they are not willing to share. In the U.S. intelligence system that information is marked NOFORN, the abbreviation of “not releasable to foreign nationals.” The British and the Israelis have similar restrictions. This becomes a problem in combined operations, those military operations involving the forces of more than one country. For example, in Operation Desert Storm, we provided American NOFORN information to intelligence officers of the United Kingdom, Canada and Australia, our closest allies, but only for those at the headquarters and only for the duration of the operation.

We all have different sources of information on the Iranian program. Maybe we should be listening to the Israelis and British. Of course, they may have to reveal some sources and methods – that may be unlikely.


Rick Francona is a retired USAF intelligence officer with over 25 years of operational assignments with the National Security Agency, the Defense Intelligence Agency and the Central Intelligence Agency in the Middle East. He is an MSNBC military analyst. See http://www.rickfrancona.com/.

A bad week for the intelligence community....

This article appeared on MSNBC.com

A bad week for the intelligence community
First the NIE, now the interrogation tapes

It must have been a long week for senior U.S. intelligence officials. Last Monday, the National Intelligence Council released a new National Intelligence Estimate on Iran’s nuclear intentions and capabilities, essentially reversing the community’s earlier assessment that Iran was pursing a nuclear weapon, a position taken in a 2005 estimate.

Before the debris had settled from that bombshell, CIA Director General Mike Hayden announced on Thursday that his agency had destroyed tapes of the interrogations of senior al-Qaida members Abu Zubaydah and Ramzi Bin al-Shibh. Those tapes contained images of CIA officers employing “enhanced interrogation techniques” – that’s CIA-speak for water boarding. Hayden claimed the tapes were destroyed to prevent retaliation against CIA officers in the tapes if they had somehow leaked.

The long knives have come out on both sides of the Congressional aisle. Republicans are demanding hearings into the intelligence that led to the about-face estimate of Iran’s nuclear program, hinting that they believe the NIE to be politicized. Democrats, on the other hand, are calling for an investigation and possibly a special prosecutor to determine if laws were violated by CIA’s destruction of the interrogation tapes. At least one senator is charging a cover-up of CIA misconduct in the treatment of al-Qaida detainees.

Flash bulletin for Director of National Intelligence Mike McConnell (whom I know and respect): At a time when you are trying to rebuild international credibility and shore up the American public’s confidence in the U.S. intelligence community, you don’t need the perception of incompetence these two incidents are going to generate, nor do you need the explosion of bipartisan witch-hunting that has already started.

The NIE

Granted, Iran is a tough intelligence problem for the United States – I spent years working the Iranian issue in both the signals intelligence (communications intercepts) and human intelligence (source operations) disciplines and can personally vouch for the difficulty in penetrating this target. With no official U.S. presence in Iran, all intelligence must be collected from outside the country or gained from the cooperating intelligence services of other countries (Israel, the United Kingdom, etc). These factors detract from the quality of information we are able to collect and the intelligence we are able to produce.

Intelligence, by its very nature, is normally based on incomplete and often contradictory information. Analysts are called on to make assessments with the scarcest of data. Reliable sources with access to required information in Iran are difficult to develop. The 2007 estimate, supposedly based on new information, has been touted by many as an indication of an earlier intelligence failure. If this latest NIE is accurate, it could be viewed as an intelligence success.

That said, the question for the intelligence community remains: You were wrong in 2003 about Iraq. You were wrong in 2005 about Iran. Why are you right in 2007?

The tapes

There was probably no worse time for the revelations of the 2005 destruction of the interrogations videotapes. While I generally support the decisions of senior intelligence officials in these matters, I have to take issue with General Hayden. Destroying the tapes to protect CIA officers this is important, or course, but you cannot run an intelligence community on the assumption that information will leak. If so, you would not be able retain any source identification information. The tapes would be useful to prove to the Congressional oversight committees that CIA officers were operating within approved guidelines.

The tapes were destroyed in 2005, before Mike Hayden took over at CIA. He did not make that decision, but he now gets to defend it. Good luck.

We need accurate intelligence. We need an independent, nonpolitical intelligence community to produce that intelligence. It is unfortunate that these two events – the NIE reversal and the revelation of the videotape destruction – come at a time when the community needs all the credibility it can get.


Rick Francona is a retired USAF intelligence officer with over 25 years of operational assignments with the National Security Agency, the Defense Intelligence Agency and the Central Intelligence Agency in the Middle East. He is an MSNBC military analyst. See www.rickfrancona.com.

Israel and the Iran NIE

This article appeared on MSNBC.com

Israeli perspective on the NIE
Francona: Israel believes Iran is now the country's own problem to fight

The recently released National Intelligence Estimate – Iran: Nuclear Intentions and Capabilities – reverses the American intelligence community’s assessment of the Iranian nuclear program. The key judgments state that Iran halted its nuclear weapons program in 2003 and likely had not restarted it by mid-2007.

Within a week of the NIE release, the Chairman of the Joint Chiefs of Staff was invited to Tel Aviv to meet with senior Israeli military intelligence officials to hear their contradictory assessment of the Iranian nuclear program. In Israel, the military intelligence service (Aman) is the senior intelligence entity – it is responsible for intelligence estimates. In the United States, estimates are the responsibility of the community-wide National Intelligence Council.

The Israeli perspective

Israel views Iran differently than we do. To Israelis, Iran represents the “existential” threat to the Jewish state. While other countries present threats, only Iran is perceived to be pursuing capabilities that could destroy Israel. I was in Israel recently and every official presented the same position – Iran is intent on developing nuclear weapons to complement its existing ballistic missile capabilities. When Iran has acquired the ability to strike Israel with a nuclear warhead, it will. Israeli analysts posit that three well-placed nuclear weapons in the area from Haifa to Tel Aviv, home to about half the world’s Jews, could deliver an unrecoverable blow that would effectively destroy the country.

Iran has topped Israel’s threat list for some time. No wonder when you look at Iranian involvement in Israel’s back yard. To the north, Lebanon is home to probably the world’s most effective irregular army – Hezbollah. Hezbollah is almost completely funded, equipped and trained by the Iranian Islamic Revolutionary Guard Corps’ Qods Force – the same group that funds, trains and equips the Shia militias that are killing American troops in Iraq. Most of the rockets that landed in northern Israel during the Israel-Hezbollah war in 2006 were made in Iran and funneled into Lebanon via Syria.

To the northeast, Syria is probably Iran’s closest ally. They have had a defense cooperation agreement going back over two decades. Damascus is the gateway for Iranian support to Hezbollah, as well as home to several Palestinian groups opposed to any peace agreement with Israel. Syria and Iran also operate joint intelligence sites intercepting Israeli communications. To the south and east, Israel is faced with terrorism at the hands of Hamas and Islamic Jihad. As with Hezbollah, both Palestinian groups are funded, equipped and trained by Iran.

Israel’s outlook

Israel believes that Iran has had an ongoing nuclear weapons development program, one that did not stop in 2007. In fact, Israeli intelligence analysts believe Iran could develop a weapon by 2010. Given the estimate just been released by the U.S. intelligence community, there is almost no chance there will be any American military action against the Iranian nuclear program. To Israel, that means what they believe to be a world problem will no longer have a world solution. It now falls on their shoulders to solve the Iranian problem.

While the recent NIE probably eliminated the possibility of American military action against Iran, it may have actually increased the likelihood of an Israeli attack.

www.rickfrancona.com

Waterboarding: Is it torture and does it work?

This article appeared on MSNBC.com

Waterboarding: Is it torture and does it work?
Interrogation methods may be essential to the survival of Americans

COMMENTARY
By Lt. Col. Rick Francona
Military analyst
MSNBC

There is an ongoing debate about CIA use of the interrogation technique known as “waterboarding” and other so-called “enhanced interrogation techniques.” Waterboarding simulates drowning though forced inhalation of water into the lungs and nasal passages. Many believe this, or any form of physical coercion, amounts to torture.

Some of the enhanced techniques in question are sleep deprivation, sensory manipulation, isolation, open-handed blows and, of course, waterboarding. While undergoing training for intelligence operations, many officers in the armed forces intelligence services and the CIA were subjected to these techniques, albeit in a controlled training environment. Why? Because in almost every conflict in which the United States has been involved, our military personnel have been subjected to these interrogation methods.

The argument that use of aggressive interrogation techniques by CIA interrogators will place our military personnel at greater risk in the future should they be captured does not stand up to scrutiny. American prisoners of war have never been treated in accordance with the Geneva Conventions – the only countries that adhere to the protocols seem to be the United States and its allies. In virtually every conflict, our captured personnel have been brutally treated and abused.

Do these enhanced techniques rise to the level of torture? This becomes a matter of semantics and interpretation. After Sept. 11, 2001, the U.S. government defined as torture methods that cause “permanent physical harm or severe pain.” In August 2002, the Justice Department defined “severe torture” as “a high level of intensity that the pain is difficult for the subject to endure.”

Using this standard, none of the above techniques is considered to be torture. That, however, does not make them acceptable under various international protocols. For example, some human rights organizations consider even blindfolding and handcuffing to be torture, as well as isolation and sleep deprivation.

Many, including Sen. John McCain and my colleague Bob Baer, believe that torture does not work. In most instances, it does not. Certainly, the preferred method and the most effective method is to establish some sort of relationship with a prisoner and convince him or her to talk to you. Many intelligence services have very effective strategic interrogation programs. The key word here is strategic and it takes time for that relationship between interrogator and subject to develop.

Time is not always available. In these instances, when it is believed that the subject has vital information on impending events that put your unit, organization, citizens or country at risk, it is imperative to obtain the information as quickly as possible. This is when enhanced or aggressive techniques may become necessary and should be considered as a tool to save lives.

When you employ these techniques, as pointed out by McCain and Baer, the risk that the subject will tell you whatever he thinks will stop the interrogation. The argument is that this information, obtained under physical or mental duress, is unreliable. That can be true, and the reason why these techniques must be used only by properly trained personnel in specific circumstances. It is also imperative that the obtained information must be verifiable or corroborated through independent information.

In most cases, that means you must have more than one source or more than one subject. Constant corroboration between various sources or subjects will eventually lead to the truth. You play one source against the other and soon you arrive at an accurate understanding of the information they have. According to former Director of Central Intelligence George Tenet and CIA operations Officer Michael Scheuer, enhanced interrogation was effective in obtaining useful information.

Use of these enhanced techniques is the sole domain of specially trained CIA officers, following extensive legal reviews. Military personnel are specifically forbidden from using them. Army Field Manual 2-22.3, Human Intelligence Collector Operations (September 2006) details exactly what DOD and military interrogators can do: It is now the Department of Defense’s standard guide to interrogations.

This may be a moot discussion. Congress is considering a bill that would force all government agencies to adhere to the interrogation guidelines in the Army manual. Enacting such legislation would eliminate the water boarding option for any future high-value detainees, regardless of the threat posed to the country.

While I am not advocating the use of these techniques, I would caution outlawing them. There may be a time when the need to obtain information is essential to the survival of hundreds, possibly thousands of Americans.

Rick Francona is a retired USAF intelligence officer with over 25 years of operational assignments with the National Security Agency, the Defense Intelligence Agency and the Central Intelligence Agency in the Middle East. He is an MSNBC military analyst. See http://www.rickfrancona.com/.

The Dual-Hatted Syndrome

Haven't we learned anything from past intelligence reorganizations?

Just two years ago intelligence reform efforts created the Director of National Intelligence and finally broke up the dual responsibilities of the Director of Central Intelligence (DCI)/Director, Central Intelligence Agency (CIA). This long-standing position raised frequent issues due to the built-in conflict of interest, managed better or worse by successive incumbents. The DNI, currently retired admiral Mike McConnell, is expected to function as the actual head of our intelligence community, independent of potential conflicts of interest or loyalties to any of the intelligence agencies - THE intelligence czar. Meanwhile the Director of the CIA should be able to focus on optimizing the heavily-criticized performance of that agency, unhampered by other responsibilities. We'll see if all this works out as intended.

Last month the Department of Defense created, and congressional oversight committees approved, another dual-hatted intelligence position begging for conflicts of interest and chain-of-command confusion: designating the under secretary of defense for intelligence, currently retired general Jim Clapper, also as the Director of Defense Intelligence within the Office of the DNI. If anything, this seems to deepen the divide between the Department of Defense and the intelligence community. It begs the question of who will actually determine tasking priorities for defense agencies (DIA, NSA, NRO, etc) - the DNI or the Secretary of Defense? Based on the DoD press release announcing this new position, SecDef Bob Gates appears to envision this as an equal, not subordinate function to overall U.S. intelligence activities, supposedly directed and coordinated by the DNI. And Gates has experienced the pros and cons of a dual-hatted DCI and CIA director himself. So much for ONE intelligence Czar!

Perhaps more details will emerge soon and make this all appear more logical.

This initial perspective is based on the DoD news release of 24 May 2007 and intentionally without the benefits of any media "wisdom" on this issue.

NSA Intercepts & the FISA Court

Below is the best legal explanation I have heard yet on the much-debated question about why President Bush by-passed the FISA Court for this program. Undoubtedly this will be examined and debated in upcoming Senate Judiciary Committee hearings and possibly in court.

Meanwhile, this perspective from a former counsel to the Senate Select Committee on Intelligence is worth reading carefully:



Wall Street Journal
January 19, 2006

Terrorists On Tap
By Victoria Toensing

In a speech this week, former vice president Al Gore took another swing at the National Security Agency's electronic surveillance program, which monitors international communications when one party is affiliated with terrorists. Specifically, Mr. Gore argued that George Bush "has been breaking the law repeatedly and persistently," and that such actions might constitute an impeachable offense. The question he raises is whether the president illegally bypassed the Foreign Intelligence Surveillance Act(FISA). But the real issue is national security: FISA is as adept at detecting -- and, thus, preventing -- a terrorist attack as a horse-and-buggy is at getting us from New York to Paris.

I have extensive experience with the consequences of government bungling due to over-strict interpretations of FISA. As chief counsel for the Senate Intelligence Committee from 1981 to 1984, I participated in oversight of FISA in the first years after its passage. When I subsequently became deputy assistant attorney general in the Reagan administration, one of my responsibilities was the terrorism portfolio, which included working with FISA.

In 1985, I experienced the pain of terminating a FISA wiretap when to do so defied common sense and thwarted the possibility of gaining information about American hostages. During the TWA 847 hijacking, American serviceman Robert Stethem was murdered and the remaining American male passengers taken hostage. We had a previously placed tap in the U.S. and thought there was a possibility we could learn the hostages' location. But Justice Department career lawyers told me that the FISA statute defined its "primary purpose"as foreign intelligence gathering. Because crimes were taking place, the FBI had to shut down the wire.

FISA's "primary purpose" became the basis for the "wall" in 1995, when the Clinton-Gore Justice Department prohibited those on the intelligence side from even communicating with those doing law enforcement (The author was Jamie Gorelick - a Dem that also sat on the 911 commission and asked why more wasn't done - she should have been on the other side of the table -J.). The Patriot Act corrected this problem and the FISA appeals court upheld the constitutionality of that amendment, characterizing the rigid interpretation as "puzzling." The court cited an FBI agent's testimony that efforts to investigate two of the Sept. 11 hijackers were blocked by senior FBI officials, concerned about the FISA rule requiring separation.

Today, FISA remains ill-equipped to deal with ever-changing terrorist threats. It was never envisioned to be a speedy collector of information to prevent an imminent attack on our soil. And the reasons the president might decide to bypass FISA courts are readily understandable, as it is easy to conjure up scenarios like the TWA hijacking, where strict adherence to FISA would jeopardize American lives. The overarching problem is that FISA, written in 1978, is technologically antediluvian. It was drafted by legislators who had no concept of how terrorists could communicate in the 21st century or the technology that would be invented to intercept those communications. The rules regulating the acquisition of foreign intelligence communications were drafted when the targets to be monitored had one telephone number per residence and all the phones were plugged into the wall. Critics like Al Gore and especially critics in Congress, rather than carp, should address the gaps created by a law that governs peacetime communications-monitoring but does not address computers, cell phones or fiber optics in the midst of war.

The NSA undoubtedly has identified many foreign phone numbers associated with al Qaeda. If these numbers are monitored only from outside the U.S., as consistent with FISA requirements, the agency cannot determine with certainty the location of the persons who are calling them, including whether they are in the U.S. New technology enables the president, via NSA, to establish an early-warning system to alert us immediately when any person located in the U.S. places a call to, or receives a call from, one of the al Qaeda numbers. Do Mr. Gore and congressional critics want the NSA to be unable to locate a secret al Qaeda operative in the U.S.?

If we had used this ability before 9/11, as the vice president has noted, we could have detected the presence of Khalid al-Mihdhar and Nawaf al-Hazmi in San Diego, more than a year before they crashed AA Flight 77 into the Pentagon.

And to correct an oft-cited misconception, there are no five-minute "emergency" taps. FISA still requires extensive time-consuming procedures. To prepare the two-to-three-inch thick applications for non-emergency warrants takes months. The so-called emergency procedure cannot be done in a few hours, let alone minutes. The attorney general is not going to approve even an emergency FISA intercept based on a breathless call from NSA.

For example, al Qaeda agent X, having a phone under FISA foreign surveillance, travels from Pakistan to New York. The FBI checks airline records and determines he is returning to Pakistan in three hours. Background information must be prepared and the document delivered to the attorney general. By that time, agent X has done his business and is back on the plane to Pakistan, where NSA can resume its warrantless foreign surveillance. Because of the antiquated requirements of FISA, the surveillance of agent X has to cease only during the critical hours he is on U.S. soil, presumably planning the next attack.

Even if time were not an issue, any emergency FISA application must still establish the required probable cause within 72 hours of placing the tap. So al Qaeda agent A is captured in Afghanistan and has agent B's number in his cell phone, which is monitored by NSA overseas. Agent B makes two or three calls every day to agent C, who flies to New York. That chain of facts, without further evidence, does not establish probable cause for a court to believe that C is an agent of a foreign power with information about terrorism. Yet, post 9/11, do the critics want NSA to cease monitoring agent C just because he landed on U.S. soil?

Why did the president not ask Congress in 2001 to amend FISA to address these problems? My experience is instructive. After the TWA incident, I suggested asking the Hill to change the law. A career Justice Department official responded, "Congress will make it a political issue and we may come away with less ability to monitor." The political posturing by Democrats who suddenly found problems with the NSA program after four years of supporting it during classified briefings only confirms that concern.

It took 9/11 for Congress to pass the amendment breaking down the "wall,"which had been on the Justice Department's wish list for 16 years. And that was just the simple tweak of changing two words. The issues are vastly more complicated now, requiring an entirely new technical paradigm, which could itself become obsolete with the next communications innovation.

There are other valid reasons for the president not to ask Congress for a legislative fix. To have public debate informs terrorists how we monitor them, harming our intelligence-gathering to an even greater extent than the New York Times revelation about the NSA program. Asking Congress for legislation would also weaken the legal argument, cited by every administration since 1978, that the president has constitutional authority beyond FISA to conduct warrantless wiretaps to acquire foreign intelligence information.

The courts may ultimately decide the legality of the NSA program. Meanwhile, the public should decide whether it wants NSA to monitor terrorists, or wait while congressional critics and Al Gore fiddle.

Ms. Toensing, a Washington lawyer, was chief counsel for the Senate Intelligence Committee and deputy assistant attorney general in the Reagan administration.

© 2006 The Wall Street Journal

Justice Probe of NSA Leak

Prominent news readers on major news networks called the fact that the Department of Justice is investigating the source of the recent leak about NSA's intercept program a "Stunning development!" Even the most cursory research would have served as a reminder that the DoJ is required to investigate national-level breaches of law and such an investigation should come as no surprise to anyone.

The National Security Act of 1947, which governs these matters, tasks the President with the establishment of procedures to govern access to classified information. This act also defines classified information as "information that has been determined pursuant to Executive Order 12356 (or successor orders) to require protection against unauthorized disclosure." Although technically the President is the official U.S. classification authority, this authority is delegated to the Director of National Intelligence (formerly the Director of Central Intelligence). The act makes this official "responsible for protecting intelligence sources and methods from unauthorized disclosure." It also requires him to notify congressional oversight committees of any violation and to refer violations to DoJ for investigation.

"The government has no legal right to pursue the whistleblower [or] whistleblowers who disclosed what's been publicly aired to date," cried a lawyer representing whistleblowers.

I could not disagree more: it is illegal for anyone to violate their secrecy oath, a legally binding condition of access to classified information, and all violators of our laws must be held accountable. To deal with real or perceived abuses by any government agency is precisely why there is a well-established complaint process within the each agency of the executive branch, as well as legislative oversight by appropriate congressional committees with properly cleared members of Congress and staff. The leaker signed an oath - going to the New York Times violates that oath - no matter what the intent.

The National Security Act has specific provisions for the Inspector General to " ensure operations are conducted efficiently and in accordance with applicable law and regulations" and to report to the DNI and oversight committees violations, abuses, fraud and other serious problems and deficiencies, as well as corrective actions. The act further offers specific protection for whistle blowers: the IG may not disclose their identity without their consent and there may be no reprisal (or threat thereof).

As an intelligence professional I can tell you with absolute certainty that only authorized government personnel (or government contractors) with appropriate clearances, who have a specific need to know because of the position they hold, have legal access to classified information. There are no circumstances under which citizens or media reps have the right to this access, although access is sometimes granted on a limited basis during certain judicial proceedings.

The fact that there are abuses of this trust within the government or in the intelligence community (just like law enforcement members, politicians, teachers, clergy, lawyers, etc. sometimes violate the trust placed in them), in no way justifies the unauthorized release of classified information to anyone and it remains illegal to do so. To deal with violations of this trust is precisely why we have a rigorous system of congressional oversight since the mid-1970s: the oversight committees' (intelligence, judiciary, armed services, etc) members and staff are specifically cleared for classified access and well-equipped to deal with this type of problem. I did just this during several years on the staff of the U.S. Senate Select Committee on Intelligence.

The law provides for punishment of those with legal access to classified information who release it to unauthorized recipients, not those who receive it this way and make it public. Thus the media can make anything public they want, but that does not mean they have the right to classified information. The leakers are violating the law, not the media.

Another View of the NSA Case

Here is another perspective on the legal issues of this case from a former colleague on the Senate Select Committee on Intelligence:

Power Play
Did Bush Roll Past the Legal Stop Signs?
By Suzanne E. Spaulding
Sunday, December 25, 2005; B01

At his news conference last week, President Bush objected when a reporter characterized his use of executive power to eavesdrop on Americans without any court order as "unchecked." The president's sensitivity is understandable. As he went on to explain, the charge of unchecked power implies that he is asserting a kind of dictatorial authority -- precisely what Americans fought, and continue to fight, against in Iraq. But what are the sources of checks and balances of a president's authority? They are the Congress, the courts and, ultimately, the American people. Based on the facts as reported so far, none of these appear to have operated as an effective check on this extraordinary exercise of presidential power.

Ironically, if it is ultimately determined that this domestic surveillance program reflects the exercise of unchecked power in contravention of law, it will wind up weakening the presidency. Once again, we will confront the challenge of restoring Americans' faith in the rule of law and our system of checks and balances. The administration says Congress was briefed "at least a dozen times" in the four years since the wiretap program started. Even assuming that these classified briefings accurately conveyed all relevant facts, it appears that they were limited to only eight of the 535 senators and representatives, under a process that effectively eliminates the possibility of any careful oversight.

As a former legal counsel for both Republican and Democratic leaders of the House and Senate intelligence committees, I'm well aware of the limitations of these "gang of eight" sessions. They are provided only to the leadership of the House and Senate and of the intelligence committees, with no staff present. The eight are prohibited from saying anything about the briefing to anyone, including other intelligence panel members. The leaders for whom I worked never discussed the content of these briefings with me.

It is virtually impossible for individual members of Congress, particularly members of the minority party, to take any effective action if they have concerns about what they have heard in one of these briefings. It is not realistic to expect them, working alone, to sort through complex legal issues, conduct the kind of factual investigation required for true oversight and develop an appropriate legislative response.

These gang of eight briefings, while sometimes necessary, should be extremely rare. Under the National Security Act, they are supposed to be limited to situations involving covert actions, and even then only under "extraordinary circumstances." Yet they have occurred with increasing frequency in the last few years.

Before I worked on the intelligence committees, I was a lawyer at the CIA. We understood that congressional oversight was key to maintaining the trust of the American public, which is vital for a secret agency operating in a democracy. True oversight helps clarify the authority under which intelligence professionals operate. And when risky operations are revealed, it is important to have members of Congress reassure the public that they have been overseeing the operation. The briefings reportedly provided on the National Security Agency (NSA) surveillance program reflect, instead, a "check the box" mentality -- allowing administration officials to claim that they had informed Congress without having really achieved the objectives of oversight.

And it is clear that the courts did not have any role in reviewing this assertion of executive authority. Instead of going to a judge on the secret court that was specifically established to authorize foreign intelligence surveillance inside the United States, we are told that an NSA shift supervisor was able to sign off on the warrantless surveillance of Americans. That's neither a check nor a balance. The primary duty of the NSA shift supervisor, who essentially works for the president, is to collect intelligence. The task of the judge is to ensure that the legal standards set out in the 1978 Foreign Intelligence Surveillance Act (FISA) have been met. Which one has stronger independence to say no, if no needs to be said?

The objectives of the surveillance program, as described in news reports, seem laudable. The government should be running to ground the contacts listed in a suspected terrorist's cell phone, for example. What is troubling is that this domestic spying is being done in apparent contravention of FISA, for reasons that still are not clear.

FISA anticipates situations in which speed is essential. It allows the government to start eavesdropping without a court order and to keep it going for a maximum of three days. And while the FISA application process is often burdensome in routine cases, it can also move with remarkable speed when necessary, with applications written and approved in just a few hours.

Perhaps the administration did not believe that these wiretaps would meet the FISA standard, which requires the government to have probable cause to believe that the target of the surveillance is an agent of a foreign power, which includes terrorists and spies. Yet, since 2001, FISA judges have reportedly reviewed more than 5,645 applications and rejected only four. The current judges were all hand-picked by the late Chief Justice William Rehnquist, who presumably felt that they had the right temperament and expertise to understand the national security imperatives as well as the need to protect civil liberties.

Nevertheless, if administration officials believed they faced a scenario in which the FISA standard could not be met, they could have sought to amend the statute, as they have done several times since the law's enactment in 1978. Several such amendments , for example, were contained in the 2001 Patriot Act.

The administration reportedly did not think it could get an amendment without exposing details of the program. But this is not the first time the intelligence community has needed a change in the law to allow it to undertake sensitive intelligence activities that could not be disclosed. In the past, Congress and the administration have worked together to find a way to accomplish what was needed. It was never previously considered an option to simply decide that finding a legislative solution was too hard and that the executive branch could just ignore the law rather than fix it.

Moreover, the administration has yet to make the case for keeping this significant policy change secret for four years. It's hard to imagine that the terrorists do not already assume that we try to listen to their cell phone conversations (after all, it is well known that FISA allows such wiretaps) or that we have technology to help us search through reams of signals. (Check out the Wikipedia definition of Echelon on the Internet.) So what do the terrorists learn from a general public discussion about the legal authority being relied upon to target their conversations? Presumably very little. What does the American public lose by not having the public discussion? We lose the opportunity to hold our elected leaders accountable for what they do on our behalf.

Attorney General Alberto Gonzales claims that the NSA program did not violate the law because FISA only requires a warrant "unless otherwise authorized by statute" and that the congressional resolution authorizing the use of force after the attacks of Sept. 11, 2001, somehow authorized this circumvention of FISA's rules. FISA does provide for criminal penalties if surveillance is conducted under color of law "except as authorized by statute." This is a reference to either FISA or the criminal wiretap statute. A resolution, such as the Use of Force resolution, does not provide statutory authority. Moreover, FISA specifically provides for warrantless surveillance for up to 15 days after a declaration of war. Why would Congress include that provision if a mere Use of Force resolution could render FISA inapplicable?

The law clearly states that the criminal wiretap statute and FISA are "the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted." If these authorities are exclusive, there is no other legal authority that can authorize warrantless surveillance.

Courts generally will not view such a clear statutory statement as having been overruled by a later congressional action unless there is an equally clear indication that Congress intended to do that.

The administration's ultimate argument is that "the president has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity." This is the same argument outlined in the infamous torture memo, which concluded that the president can effectively ignore any statute that appears to infringe on this broad authority. That memo was withdrawn after it became public and was roundly criticized. The legal reasoning behind the arguments, however, has never been repudiated and appears to have resurfaced here.

We cannot know for certain how the Supreme Court would rule on the legitimacy of the spying program. However, the court rejected President Harry Truman's similar claim of broad presidential power in seizing control of the nation's steel mills to avert a strike during the Korean War. The court, in a 6-to-3 ruling , stated that the president's inherent authority is at its weakest in areas where Congress has already legislated. It ruled that to find inherent presidential authority when Congress has explicitly withheld that authority -- as it has in FISA -- "is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between president and Congress."

The administration may be counting on fear of another terrorist attack in asserting this unprecedented authority. But if President Bush can simply ignore laws that he thinks are unconstitutional, without getting a court ruling or having genuine consultations with Congress, then why bother to work so hard at getting the Patriot Act provisions right, or the McCain torture amendment, or any other laws related to terrorism? And where does it stop? Justice Sandra Day O'Connor rejected the administration's claim of unchecked power in the 2004 Hamdi case, in which the government argued that the courts could not review the legality of enemy combatant detentions. She wrote, "We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation's citizens. . . . Whatever power the United States Constitution envisions for the Executive in its exchanges with . . . enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."

Now that the existence of this program has been revealed, the FISA judges are finally being briefed and the Senate Judiciary Committee has signaled its intention to hold hearings. Perhaps these co-equal branches will get some more specific answers to important questions like: What legal reasoning was used to justify the program in 2001? What standard is used in this program? Why couldn't FISA be used? If FISA was inadequate in some way, why not seek to amend it? What is the value of the intelligence obtained? Are there other secret programs that the heads of the intelligence committees have not been briefed about?

The rule of law and our system of checks and balances are not a source of weakness or a luxury of peace. As O'Connor reminded us in Hamdi , "It is during our most challenging and uncertain moments . . . that we must preserve our commitment at home to the principles for which we fight abroad."

Suzanne Spaulding is a Washington lawyer. She was general counsel for the Senate and House Intelligence committees, assistant general counsel at the CIA and executive director of the National Terrorism Commission (1999-2000).

© 2005 The Washington Post Company

NSA: Domestic communications intercepts

Bush authorized spying multiple times
Senior intelligence officer says president personally gave NSA permission


While there are still details of this development we don't know yet and probably won't know because of the classified nature of the activity, here are some initial observations:

Whether the President acted under proper executive authority will undoubtedly be determined during hearings of the Senate Judiciary Committee. But he did follow requirements for legal review of his orders by consulting with the NSA Legal Counsel and the U.S. Attorney General.

He also followed congressional oversight requirements by notifying the appropriate congressional committees in a timely manner. And it is customary for more sensitive activities to be briefed only to a limited number of senior oversight committee members to avoid leaks of classified national security information. Our current system of checks & balances does not require congressional oversight committees to approve intelligence activities in advance, only that they be notified of significant activities in a timely manner.

Perhaps the most improtant aspect of this debate is whether we, the people, are comfortable with executive powers being invoked in certain circumstances to protect the nation: I would argue that under certain national security related circumstances it is necessary to trust the President of the U.S. to do the right thing - we elected him to conduct the people's business to the best of his ability. While healthy dialog on issues is desirably and an unalienable right of every American citizen, continually hounding the president just because he is disliked personally by some detracts from the business at hand --it is not in the people's best interests and wastes precious resources better applied elsewhere. We often forget the real meaning of representative government: electing the best representatives we can and then letting them do their job without constant second-guessing.

The most serious legal problems are posed by those who leaked this highly classified national security information to the media, an unauthorized recipient of any classified information. Any NSA or intelligence community official concerned over an intelligence activity has an internal oversight system available to address these concerns in a legal and classified environment: NSA's internal Inspector General and/or the Intelligence Community's Inspector General. If the internal oversight process proved insufficient, legislative oversight would have been the next logical place for these officials to take their concerns: congressional oversight committees routinely investigate just those types of concerns in a legal setting designed to preserve classified national security information. Should following this well-established process still not satisfy their concerns, the honorably course of action for any true intelligence professional is to resign from such an untenable position - WITHOUT revealing classified information and potentially damaging national security.

These "concerned" officials have acted extremely unprofessionally: they clearly violated their secrecy oath and the provisions of the 1980 Classified Information Procedures Act by providing classified information to the media. While it may come as a shock to some, the media is NOT entitled to classified information under any circumstances.