Make No Mistake, Mr. President!

In his inauguration speech, President Obama famously rejected as false the choice between America’s safety and its ideals. Has the new administration honoured this commendable position in political practice? After more than a year of steering American security, a fact-check appears to be in order.

I want to do this here with respect to intelligence governance. Examining first whether or not the new government has kept its promises, I then elaborate on  the driving forces behind the recent developments in this arcane domain.

Intelligence governance under Obama …

Unsurprisingly, the field of intelligence is replete with opportunities for the Obama administration to demonstrate its commitment to an « unprecedented level of openness » and its desire to « restore the standards of due process and core constitutional values that have made this country great ».

Under G.W. Bush, intelligence governance has severely damaged America’s international reputation. Key strategic decisions (such as the invasion of Iraq) were based on flawed and heavily politicised intelligence, US intelligence agents conducted torture and extraordinary renditions on suspected terrorists (often on the basis of equally flawed intelligence, see, for example, the el-Masri case), and the NSA engaged in illegal surveillance/wire-tapping of US citizens.

Unfortunately, this is only a selection of the most stinking turds that President Obama has found under the rugs of the White House upon his arrival. (For a fuller scope, see the ACLU’s Torture Report). On his first full day in office, Barack Obama has responded to this rather unpleasant dowry by promising the restoration of constitutional values. How did that go and what does the process reveal about the master and servants of US intelligence governance?

… remains murky and profoundly undemocratic

To say it upfront, the track record is rather sombre thus far.

The first executive orders (ie. no more secret prisons, the closure of Guantànamo, an unequivocal prohibition of torture) were very much in keeping with his original pledge. The administration deserves credit for its resolve – even if the deadline for the closure of Gitmo has not been met. Shortly afterwards, however, this earlier commitment became less visible – sometimes hardly distinguishable even from the  « Bush/Cheney template » (Glenn Greenwald).

For example, I would argue that Obama shunned the rule of law principle by demanding fellow Americans to look forward and not backwards with respect to the misguided counter-terrorism policies of his predecessor. Make no mistake, this is code for blocking rigorous accountability proceedings on the various instances of malfeasance that occurred under his predecessors’ watch. Sadly, despite ubiquitous calls for a New Church Inquiry, Obama remains steadfast on this mistaken position to look forward. How can the US government look into the future without drawing the lessons from the troubled past? Oversight, one should add, is not primarily a witchhunt. Rather, it allows a nation to come clean and ameliorate its policies and regulatory framework.

Against this backdrop, consider how Obama’s surprising choice for the position of the new CIA director, Leon Panetta, justifies the government’s policy to evade accountability:

« Together, the CIA and Congress must find a balance between appropriate oversight and a recognition that the security of the United States depends on a CIA that is totally focused on the job of defending America. [...] Intelligence can be a valuable weapon, but it is not one we should use on each other. As the president has said, this is not a time for retribution. Debates over who knew what when — or what happened seven years ago — miss a larger, more important point: We are a nation at war in a dangerous world, and good intelligence is vital to us all. That is where our focus should be. »

Marcy Wheeler, a very sharp and prolific blogger, exposes the real intention behind this line of reasoning. She observes that the CIA director

« seems to suggest that pursuing the question of « who knew what when–or what happened seven years ago » would amount to using « intelligence » against the CIA. This conflates intelligence, of course, with oversight. Asking who knew what when is precisely the job of real oversight. But Panetta suggests asking such questions would put Congress and the CIA in an antagonistic role. It would ruin that flaccid consensus Panetta seems to want Congress to preserve. But in that statement is a threat. If you conduct oversight over us, Panetta seems to be saying, having now relabeled oversight as « using intelligence on each other, » we will do the same. […] You’ve got a choice, Panetta seems to be saying. Impotent consensus–which amounts to the same rubber-stamping of intelligence policies you did for the last eight years (but promise, we’ll be good!). Or intelligence, used on each other. A nice impotent consensus you’ve got here, Congress. It’d be a shame if anything were to happen to it. »

Unfortunately, these were only the forbearers of a rather conservative approach to intelligence oversight – not much different, actually, from that of the previous administration — which has caused the 9/11 commission to characterise intelligence oversight  as “dysfunctional”:

In Mid-March, for example,  the White House threatened to veto the pending FY2010 Intelligence Authorization Act. In this bill, the democratic majority in the US Congress has finally managed to tackle two major flaws in the current system of US intelligence oversight – the “Gang of Eight” notification regulation for covert operations and the underwhelming resort to the investigatory expertise of the Government Accountability Office (GAO) by the congressional intelligence oversight panels. Yet the Obama Administration wants none of it. It threatens to veto the bill and prefers, instead, to stick to a system that everyone knows to be a sham. Glenn Greenwald, again, on the « Gang of Eight » rule:

« It allowed the administration to claim that it « briefed » select Congressional leaders on illegal conduct, but did so in a way that ensured there could be no meaningful action or oversight, because those individuals were barred from taking notes or even consulting their staff and, worse, because the full Intelligence Committees were kept in the dark and thus could do nothing even in the face of clear abuses. »

Conclusion

The path that the Obama administration has taken with regard to intelligence governance is neither in keeping with its earlier promise to restore constitutional values nor are we witnessing an unprecedented era of openness. While courting the notion of change initially, the administration has now made several steps backwards by embracing the old rhetoric of the Bush administration in fending off too robust intelligence oversight.

Granted, intelligence and openess do not go together very easily. Still, the continued celebration of oversight myths (such as the infamous « Gang of Eight » notification practice) deserves to be identified and criticised. What is more, the current American polity features virtually no real investigations into past intelligence malfeasances and interested citizens learn about problematic and unlawful activities only from the press. Thus the allegations remain – even the credible and egregious ones – remain forever alleged.  This is not the way to gain the trust of the electorate. Worse still, this may gradually undermine the countries’  social fabric.

Against this, one may argue that the quality of intelligence governance is not only to be determined by “good” but also by “effective” governance. As concerns the latter, a more assertive CIA (at least in its operations against Al-Qaeda) would count as a plus on the out-put legitimacy score of Obama’s intelligence governance. In turn, the compartmentalisation of the US intelligence community would then have to appear as a big minus on the same balance sheet. All this, however, goes beyond the scope of this commentary.

The fact is that intelligence accountability under Obama remains an illusion. At least in part this may be explained by the administration’s fear not to be perceived as too soft on security issues. The Republicans also know that they can influence the policy-making process by cooking up this image long enough. Dahlia Litwick calls this America’s special brand of terrorism-derangement syndrome:

« What was once tough on terror is now soft on terror. And each time the Republicans move their own crazy-place goal posts, the Obama administration moves right along with them. »

To end on a slightly more positive note, one may hope that the recent victory on the domestic public health front and the international praise for the new America nuclear posture reinvigorate the administration’s confidence in its own convictions. Last month, President Obama announced that

« We came to Washington to change the way business was done, and part of that was making ourselves accountable to the American people by opening up our government. »

Honni soit qui mal y pense?

US intelligence and wikileaks.org

For researchers interested in government secrecy, www.wikileaks.org can often be a valuable site. Sometimes, however, it presents information in an unbearably biased fashion. Consider, for example, this recent headline:

“US intelligence planned to destroy wikileaks”.

This sounded like quite a story. What would be the implications if that was true? Should Google pull out of the US? I was curious and started reading a bit in the leaked study commissioned by the US Department of Defense Intelligence Analysis Program (DIAP). It examined how wikileaks.org might jeopardise the interests of US forces by playing vital intelligence into the hands of its various opponents. Not surprisingly, it concluded that

“Wikileaks.org, a publicly accessible Internet Web site, represents a potential force protection, counterintelligence, operational security (OPSEC), and information security (INFOSEC) threat to the US Army.”

Looking then for signs that US intelligence actually planned to disrupt this site, I only stumbled across a number of rather common-sense recommendations:

“the identification, exposure, termination of employment, criminal prosecution, legal action against current or former insiders,
leakers, or whistlblowers could potentially damage or destroy this center of gravity and deter others considering similar actions from using the Wikileaks.org Web site”.

Don’t get me wrong. I admire and support the power of investigative sources on the net. Still, it is also understandable (and a calculated risk for leakers) that those who would like to keep the information will not pull their legal punches against them for informing the public. That’s not anything new under the sun nor has this threat become more serious for leakers than before.

What I find disturbing, then, is the sensationalist headline. Based on what I’ve gathered from DIAP study, this is a far cry from any plan to “destroy” Wikileaks. This kind of reporting is, in my view, entirely inappropriate. A more factual approach would be in order.

Prelude: Hamlet without the Prince?

At least for the foreseeable future, the bulk of my contributions to this blog will focus on intelligence and private security matters. Judging from past research experiences on these topics, notably my doctoral thesis on parliamentary intelligence oversight for alleged intelligence governance malfeasances in the current counter-terrorism climate, a great number of reports and sources that I will use and comment on will be of North American origin. Having said this, whenever possible, I will either try to unearth the implications for European security politics or engage in comparisons with similar developments (or the lack thereof) in Europe.

Two things, in particular, should be further clarified in this prelude: First, just because the reporting and/or the actual intelligence or private security activities are of external origin does not mean that they do not influence European politics. (If any justification for this was necessary, consider the US-led extraordinary rendition programme and the shock waves and complicity investigations that followed in Europe). Second, focusing on the responses that some of these (mostly alleged) activities have provoked in North America, we can also draw precious lessons on how to better understand the challenges and, ideally, improve the practice of democratic security in Europe, too.

Glossary on the tricks of the secrecy trade

As I blog along, I plan to create some sort of a running tally on the various tricks of the secrecy trade. For the moment, I can foresee at least two incentives for this:

First, by generating a living glossary of recurring terms and themes and practices, I might pave the way for the attribution of what may be called ‘accountability portfolios’ to specific actors. Knowing the kind of paths that certain actors have taken to evade or enhance accountability practices might, in turn, be a useful and hands-on approach to comment on the current intelligence oversight reform initiatives in Western democracies. In other words, it may help to further illuminate the various strategical tools that are at the disposal of those who would rather not disclose their information and those (few) who muster enough political will to bring light into malfeasance allegations.

Second, as a number of important terms are coined by North American actors, it might also be useful to add a brief explanatory note to these terms so that they become also more comprehensible to Non-North American audiences.

Consider, for example, the following exemplary glossary item:

to graymail –

“a legal tactic that has been used for years by intelligence operatives or assets who are facing prosecution or fear they soon will be. In short, these operatives or assets threaten to reveal details of sensitive or classified operations in order to ward off indictments or criminal charges, based on the belief that the government would not want these details revealed.” (Source: www.thenation.com/doc/20091221/scahill2)

Binyam Mohamed and British intelligence oversight

This week, to quote Kings of War blogger, Robert Dover,

“a veritable poo-storm hit the British Court of Appeal yesterday as a private exchange of correspondence – between the government’s lawyer Jonathan Sumption QC and the Court – became public. The government had asked that part of the judgment relating to the alleged torture of Binyam Mohammed be redacted (or removed) in the interests of protecting the reputation of our Security Service (known to nearly everyone as MI5).”

Amongst other things (such as the conflation of national security with national embarrassment), the case of Binyam Mohamed (see this piece for starters, see also this piece for the various court rulings in pdfs, see Scott Horton’s feed for a more holistic appreciation of this week’s news on this)  is indeed a very interesting case of flawed British parliamentary intelligence accountability.

Although the Intelligence and Security Committee (ISC) has dealt with this case in its ad hoc Renditions report (2007), the most intriguing information is to be found elsewhere: In Mohamed v. Foreign Secretary, the British High Court revealed (already in 2008), how the ISC, which supposedly operates from within the ring of secrecy, has been kept outside of the loop in this (and arguably a number of other cases that will gradually come to the fore). Actually, it is even worse: Not only has crucial information been withheld (which amounts to more regular stone-walling), this time, upon questioning, the principal was positively misinformed by MI5 …. and was caught “red-handed”, too.

So what? We note that the fox has rarely been caught munching like this before. Against the backdrop of popular assertions that the ISC is fully informed, this revelation comes at a very high cost. It severely challenges the very credibility of Britain’s intelligence watchdog. (Arguably, we may have crossed the tipping point as the ISC has already been severely criticised for its haphazard role in the Iraqi WMD investigation.)

Three points, I believe, should be born in mind with respect to (hopefully pending) intelligence oversight reform in the UK: