Parliamentary oversight of security and intelligence agencies in the EU

One of the reasons for the lack of posts on this blog the past months is that I co-authored this large study (446 pages), together with Aidan Wills, for the European Parliament’s Civil Liberties, Justice and Home Affairs Committee (LIBE). The study came out today, and also includes a number of attachments written by national intelligence oversight bodies.
Abstract: This study evaluates the oversight of national security and intelligence agencies by parliaments and specialised non-parliamentary oversight bodies, with a view to identifying good practices that can inform the European Parliament’s approach to strengthening the oversight of Europol, Eurojust, Frontex and, to a lesser extent, Sitcen. The study puts forward a series of detailed recommendations (including in the field of access to classified information) that are formulated on the basis of indepth assessments of: (1) the current functions and powers of these four bodies; (2) existing arrangements for the oversight of these bodies by the European Parliament, the Joint Supervisory Bodies and national parliaments; and (3) the legal and institutional frameworks for parliamentary and specialised oversight of security and intelligence agencies in EU Member States and other major democracies.

We will present the study at the LIBE Committee at 15h on Monday the 3d of October. An Interparliamentary Committee Meeting on  “Democratic Accountability of the Internal Security Strategy and the Role of Europol, Eurojust and Frontex” will be held on Wednesday 5 October from 15.00 to 18.30 and on Thursday 6 October from 9.00 to 12.30 in the Hemicycle of the Paul-Henri Spaak building of the European Parliament as well, which is open to the public. You can register for this meeting until the 29th of September.

New details emerge about CIA agents involved in rendition and secret detention operations

Adam Goldman and Matt Apuzzo have new insights about the role of CIA officials who were involved in extraordinary renditions and secret detentions.

1. El Masri

The article describes how Frances, a “counterterrorism analyst with no field experience pushed ahead” with El Masri’s rendition, despite the doubts some at the CIA’s Counterterrorism center had whether Masri was a terrorist. The AP agreed to the CIA’s request to refer to Frances by her middle name because her first is unusual.

Senior managers were briefed, and a lawyer in the Counterterrorism Center signed off, former officials said.

Once el-Masri arrived in Afghanistan, however, questions persisted. A second detainee in U.S. custody looked at a picture of el-Masri and told CIA officers that they’d grabbed the wrong man. Perhaps most glaring,  el-Masri had a German passport. The man the CIA was looking for was not a German citizen.

Even after the CIA confirmed that the German passport was authentic, Frances was not convinced, former officials said. She argued against  freeing el-Masri, saying his phone had been linked to terrorists. For  weeks, the U.S. knowingly held the wrong man, as top CIA officers tried  to figure out what to do.

Five months after the abduction, the U.S. privately acknowledged to the  Germans what had happened. El-Masri was quietly released.

The CIA’s inspector general determined that there had been no legal justification for Masri’s rendition. Although the inspector general does not make legal conclusions, the CIA’s watchdog had essentially said the agency acted illegally.

The document has never been released but its findings were summarized by people who have seen it. The report came down hard on Frances. She had been warned about the uncertainties surrounding el-Masri’s identity. There hadn’t been enough evidence for a rendition, the report said, but Frances pushed ahead.

“You can’t render people because they have called a bad guy or know a bad guy,” a former U.S. intelligence official said, describing the investigation’s findings on condition of anonymity because the report still has not been released. “She was convinced he was a bad guy.”

Nobody in management was singled out for discipline.

The inspector general’s report posed a dilemma for senior managers. Even before the el-Masri case, station chiefs had complained to top CIA officials raising concerns about Frances’ operational judgment. But she was one of the few analysts who had a deep knowledge of al-Qaida before 9/11, working in a former unit known as Alec Station created to track down Osama bin Laden.

In the nascent war on terrorism, Frances and her team were essential and had racked up successes. She was a tireless worker who made the wrong call under intense pressure. Would disciplining her send a message that the best way to handle a tough decision was not to make one?

The report also faulted Elizabeth, the lawyer. The inspector general said her legal analysis was flawed. Elizabeth has a reputation in the agency as a diligent and cautious lawyer. Before she agreed to conduct any legal analysis on interrogation tactics, for instance, she insisted on being waterboarded, current and former officials said.

Hayden reviewed the report and decided Elizabeth should be reprimanded. Frances, however, would be spared, current and former officials said.

Hayden didn’t believe that two people who made similar mistakes had to be treated the same way. Job titles and morale mattered. He told colleagues that he gave Frances a pass because he didn’t want to deter initiative within the counterterrorism ranks, a former senior intelligence official recalled.

The disciplinary action made Elizabeth ineligible for bonuses and pay increases worth thousands of dollars. But it didn’t stall her career. She was promoted to the senior ranks in 2005 and is now legal adviser to the CIA’s Near East division.

While the inspector general was investigating the mishandled el-Masri case, congressional investigators discovered several other CIA renditions that seemed to rest on bad legal footing, a U.S. intelligence official said. The CIA looked into them and conceded that, yes, the renditions had been based on faulty analysis.

But the agency said the renditions would have been approved even if the correct analysis had been used, so nobody was disciplined.

Frances now runs the CIA’s Global Jihad unit, the counterterrorism squad dedicated to hunting down al-Qaida worldwide. She regularly briefs Panetta, making her an influential voice in Obama’s intelligence circle.

2. Gul Rahman death in the Salt Pit

In a makeshift prison fashioned out of an abandoned Afghan brick factory, CIA officers left terrorism suspect Gul Rahman overnight in an unheated cell as the early morning temperature hovered around freezing. Known as Salt Pit, the jail was the precursor to the CIA’s secret network of overseas prisons. Guards wore masks. There, stripped half naked, Rahman froze to death in November 2002.

The CIA’s inspector general launched an inquiry. The results have never been made public but were summarized for AP by former officials who, like most of the dozens of people who discussed the CIA’s disciplinary system, insisted on anonymity because they were not authorized to discuss it.

The investigation determined that the CIA’s top officer at the prison, Matt, displayed poor judgment by leaving Rahman in the cold. The report also expressed concerns about the role of Paul, the CIA station chief in Afghanistan, and later placed some blame on agency management at headquarters.

The AP is identifying Matt, Paul and other current and former undercover CIA officers – though only by partial names – because they are central to the question of who is being held accountable and because it enhances the credibility of AP’s reporting in this case. AP’s policy is to use names whenever possible. The AP determined that even the most sophisticated commercial information services could not be used to derive the officers’ full names or, for example, find their home addresses knowing only their first names and the fact of their CIA employment. The AP has withheld further details that could help identify them.

The CIA asked that the officers not be identified at all, saying doing so would benefit terrorists and hostile nations. Spokesman George Little called the AP’s decision “nothing short of reckless” but did not provide any specific information about threats. The CIA has previously provided detailed arguments in efforts to persuade senior executives at the AP and other U.S. news organizations to withhold or delay publishing information it said would endanger lives or national security, but that did not happen in this case.

The CIA regularly reviews books by retired officers and allows them to identify their undercover colleagues by first name and last initial, even when they’re still on the job. The CIA said only the agency is equipped to make those decisions through a formal review process.

After the inspector general reviewed the Rahman case, he referred the matter to the Department of Justice for the first of several legal reviews. Though current and former officials say it was a close call, prosecutors decided not to bring charges.

Next, a review board comprised of senior officers examined the case and found a number of troubling problems. The board was conflicted.

Matt was a young spy operating a prison in a war zone with little guidance about what was and wasn’t allowed. The CIA had never been in the interrogation and detention business, so agency lawyers, President George W. Bush’s White House and the Justice Department were writing the rules as they went.

A former Naval intelligence officer, Matt had repeatedly asked the CIA for heaters and additional help, but his requests were ignored by headquarters and by Paul, who was in charge of all CIA operations in Afghanistan but who had no experience in a war zone.

“How far do you go to sanction a person who made a mistake with one hand tied behind his back?” one former intelligence officer asked, recalling the board’s discussions only on condition of anonymity because they are private.

Finally, more than three years after the inquiry began, the board recommended Matt be disciplined. Though the board believed he had not intended to kill Rahman, it determined that as the head of the prison, he was responsible. The board did not recommend punishing Paul. And nobody at headquarters was to be disciplined.

The recommendations were viewed as unfair by some in the CIA. A young officer was about to be disciplined while his supervisors all got a pass.

In the end, it turned out, everyone was treated the same. The CIA’s No. 3 employee, Kyle “Dusty” Foggo, reviewed the recommendations and decided nobody would be punished. Foggo was later imprisoned in an unrelated corruption case.

Since Rahman’s death, Paul’s career has advanced quickly. He is chief ofthe Near East Division, the  section that overseas spy operations in  Iraq, Iran and other Middle East countries. It’s one of the most  important jobs in the agency. Matt has completed assignments in Bahrain, Afghanistan and Pakistan, where he was deputy chief of tribal  operations.

3. Al Nashiri

In another case involving detainee mistreatment, a CIA interrogator named Albert put an unloaded gun and a bitless drill to the head of an al-Qaida operative at a secret prison in Poland. The inspector general labeled this a “mock execution” – something the U.S. is forbidden to do. Albert was reprimanded. His boss, Mike, who ran the secret prison, retired while the case was under investigation.

Albert returned to the agency as a CIA contractor and helped train future officers. Ron, the Poland station chief who witnessed the mock execution but did not stop it, now runs the Central European Division and oversees all operations in Russia.

4. Death of Al-Jamadi in Abu Ghraib

In 2003 an Iraqi “ghost” prisoner named Manadel al-Jamadi died in a shower room under CIA interrogation at Abu Ghraib.

His head was covered by a hood. His arms were shackled behind his back, then were bound to a barred window. That way, he could stand without pain but if he tried to lower himself, his arms would be painfully stretched above and behind him.

About a half hour later, a CIA interrogator called for military guards to reposition al-Jamadi. He was slouching over, his arms stretched behind him. The CIA believed al-Jamadi was playing possum, investigative documents show.

He was dead.

An Army autopsy report labeled al-Jamadi’s death a homicide. He had been badly injured during a struggle with the Navy SEALs who captured him, doctors said. But those injuries alone wouldn’t have killed him, the medical examiner said. The strained position and the bag over his head contributed to his death, the doctor said.

The scandal at Abu Ghraib became a rallying point for anti-U.S. sentiment abroad. Eleven soldiers were convicted of wrongdoing at the prison. All were publicly tried and were kicked out of the Army.

The CIA would face no such public scrutiny. Like its ghost prisoners, the CIA might as well have never been at Abu Ghraib.

Steve, a CIA officer who ran the detainee unit there, received a letter of reprimand, former officials said. Steve processed al-Jamadi into prison after the Navy SEALs captured him. Investigators found that Steve violated procedure by not having a doctor examine al-Jamadi. That decision delayed important medical care for a man who would be dead within an hour.

Some on the Abu Ghraib review board believed Steve should have gotten a harsher punishment, according to former senior intelligence officers privy to the board’s decisions. Steve retired and is now back at CIA as a contractor.

A CIA review board also faulted Baghdad’s station chief, Gerry Meyer, and his deputy, Gordon. But they were not blamed just for the problems at Abu Ghraib. The review panel said they were too inexperienced to run the busy Baghdad station. As the situation in Iraq worsened, the station ballooned from dozens of officers into a staff of hundreds. Senior CIA managers left Meyer and Gordon in place until they were over their heads, the review panel said.

Meyer resigned rather than take a demotion. His name and job title have been identified in many books and articles since his resignation.

Gordon was temporarily barred from going overseas and sent to a training facility. But he salvaged his career at the agency, rising within the Counterterrorism Center to run the Pakistan-Afghanistan Department. In that role, Gordon, whom former colleagues describe as a very capable officer, has briefed Obama.

Interview with ex CIA head Michael Hayden

Hayden acknowledges some inefficiencies in the rapid post-9/11 scaling up of the intelligence community, but says the effectiveness of its efforts are reflected in the absence of an attack against the homeland. “How can you say we’ve not been successful?” he asks. This is the edited transcript of an interview conducted by PBS on Aug. 19, 2010.

His view on the balancing debate:

I ended the talk to the folks at NSA by saying that all free peoples have to balance their security and their liberty. … I said: “Here’s our task. We will keep America free by making Americans feel safe again.” And we turned every possible ounce of energy toward the war on terror.

On their priorities:

I used to have a little saying I used when people said, “What are your priorities?” I’d give them a bit of government alphabet soup. I’d say “CTCPROW: Counterterrorism, counterproliferation, rest of the world.”

But the most interesting quote is easily this one:

There’s a lot talked about how [former Vice President Dick] Cheney said the famous words, “We’re going to go to the dark side,” and how that has been defined by different people in different ways. What does it mean to you in terms of what was allowed and what changed?

… At NSA, about a couple weeks into the war, we were asked, “Is there anything more we can do to defend the homeland?” [Former Director of Central Intelligence George] Tenet had asked me. I said, “George, not inside the current set of guidance.” So he said, “Well, what could you do more if the guidance were different?” And I laid out a certain series of things, and somewhat to my surprise, a year or two later, he says, “Come on down to the White House.” And so we began a conversation with the vice president and then with the president saying that, “Here are some additional things we could do, but we cannot do them because we do not currently have authority to do them.”

That was the basis of the evolution of what became the Terrorist Surveillance Program and the program that NSA used then to attempt to intercept Al Qaeda-related communications into and out of the United States. Frankly, I find it to be a very successful program. There were five IGs [inspector generals] that completed a report [PDF] just this past summer on it; there was no abuse. It was focused on what it was designed to do. But it clearly was atypical when it came to where the traditional boundaries of the National Security Agency had been when it came to communications, one end of which was in the United States. That was a change. I’m quite comfortable with the change. The Constitution defends all of us against unreasonable search and seizure. What constitutes reasonableness depends upon threat. …

Rights groups call for renewed CIA prison probe in Lithuania

Human rights groups are calling on Lithuanian prosecutors to reopen a criminal investigation into a secret CIA detention center set up in the country.The Lithuanian Prosecutor General recently closed the investigation into whether State Security Department (SSD) officials had colluded with the CIA to create and operate the secret sites on 14 January 2011, citing a lack of evidence. But human rights groups Amnesty International and Reprieve claim to have evidence that the site was used to interrogate terrorism suspects.

When it closed the investigation last week, the Lithuanian prosecutor said SSD officials had committed “disciplinary offenses” by failing to notify top government officials of the operation, but that a statute of limitations on the investigation of the SSD had run out.

Lithuania’s president and top national security lawmaker on Wednesday also questioned the decision to close the investigation, saying prosecutors should reopen the case if they receive new evidence.

A parliamentary probe last year concluded that although the prison was built in Lithuania, a Baltic country in northeast Europe, there was no evidence that it was used to interrogate terrorism suspects.

Durham Torture Tape Case Dies

The statute of limitations for charging any general crime by employees and/or agents of the US Government for destructing the infamous “Torture Tapes” has expired today, as the best available information on the date of the destruction suggests that this destruction occured on the 8th of November 2005. The general statute of limitations is 5 years.

As acknowledged by the CIA, the videotapes contained evidence of the use of so-called “enhanced interrogation techniques” during the questioning of Abu Zubaydah and Abd al-Rahim al-Nashiri in a CIA black site in Thailand.

As a result, no one will face criminal charges for destroying CIA videotapes.

According to NPR:

Two sources close to the investigation say a federal prosecutor has concluded there isn’t enough evidence to bring an indictment.

It’s still possible that a current or former CIA official could face  charges for misleading investigators or otherwise obstructing justice,  related areas that the prosecutor has been investigating for more than  two years.

Emptywheel comments:

The open and shut criminal case against Jose Rodriquez is gone. The clear potential for cases against the four Bush/Cheney White House attorneys involved in the torture tapes destruction, as well as the two CIA junior attorneys, gone. Same for any case against Porter Goss. Gone, and the DOJ has no explanation and nothing to say.

Foiled Yemen Bomb Plot Heightens Talk of Putting Elite U.S. Squads in CIA Hands

The Wall Street Journal reports that support was growing both within the military and the administration for shifting more operational control, including putting “elite U.S. hunter-killer teams” that operate secretly in the country, under CIA authority in Yemen.
Allowing the U.S. military’s Special Operations Command units to operate under the CIA would give the U.S. greater leeway to strike at militants even without the explicit blessing of the Yemeni government. In addition to streamlining the launching of strikes, it would provide deniability to the Yemeni government because the CIA operations would be covert. The White House is already considering adding armed CIA drones to the arsenal against militants in Yemen, mirroring the agency’s Pakistan campaign.

Yemen has allowed the U.S. military to carry out a series of strikes on
al Qaeda targets over the past year. But in some cases, Sana’a has
delayed or objected to U.S. operations. A shift to the CIA would
streamline U.S. decision-making, giving the White House more direct
control over day-to-day operations.

Placing military units overseen by the Pentagon under CIA control is unusual but not unprecedented. Units from the Joint Special Operations Command have been temporarily transferred to the CIA in other countries, including Iraq, in recent years in order to get around restrictions placed on military operations. The CIA conducts covert operations based on presidential findings, which can be expanded or altered as needed. Congressional oversight is required but the information is more tightly controlled than for military operations. For example, when the military conducts missions in a friendly country, it operates with the consent of the local government.

The New York Times reports that the US sees the complexities of the bombs made as “link” to Al Qaeda. American officials said their operating assumption was that the two bombs were the work of Ibrahim Hassan al-Asiri, Al Qaeda in Yemen’s top bomb-maker. Asiri is believed to have built both the bomb sewn into the underwear of
the young Nigerian who tried to blow up a trans-Atlantic flight last
Dec. 25, and the suicide bomb that nearly killed Saudi Arabia’s
intelligence chief, Mohammed bin Nayef, months earlier.

Related: LA Times article on Yemen.

US Senate approves intelligence authorization bill

Key congressional Democrats confirmed Monday that Senate and House Intelligence committee leaders and the White House have agreed on measures that would require the White House to share more information on covert operations with them. According to a draft authorization bill that the House sent the Senate on Friday, Sept. 24, the White House would be required to expand notification of presidential covert action “findings,” or directives, from the so-called “Gang of Eight” to the entire membership of both congressional intelligence committees.