I Con the Record Rolls Out Its 3-Page Intel Collection Efficacy Process

Last year, PCLOB suggested that the intelligence community formalize its process to assess the efficacy of intelligence collection. While it made the recommendation as part of its 702 report, the recommendation itself came against the background of Congress and the IC having decided that the phone dragnet wasn’t really worth the cost and privacy exposure.

I Con the Record just released a report on the processes the IC now uses to conduct such efficacy assessments; the report itself is actually dated February 8. Here’s what the report addressing this complex subject includes:

Page 1: Formal cover

Page 2: [PAGE INTENTIONALLY LEFT BLANK]

Page 3:

• Introductory paragraph
• Two paragraphs laying out PCLOB recommendation
• Two paragraphs discussing “Assessing Efficacy and Value”
  • One paragraph describing that one must make both quantitative and qualitative judgements
  • One paragraph introducing the “comprehensive processes”

Page 4:

• Four paragraphs on the National Intelligence Priorities Framework (see this document for a summary of what the NIPF looked like in 2013), citing both PPD-28’s mandate to consider privacy implications and ODNI’s updated ICD 204 which includes this paragraph (but no mention of the FBI and military/covert operations exceptions to this mandate):

PPD-28 specifically requires consideration of the value of Signals Intelligence activities and the risks of potential exposure of those activities to U.S. foreign policy, defense, commercial, economic, and financial interests, international agreements, privacy concerns, and the protection of intelligence sources and methods.

• The first of two paragraphs on the IC’s “Refined Process on SIGINT Targeting” describing how requiring heads of policy departments to sign off on priorities ensures that senior policymakers provide “comprehensive” oversight of “potentially sensitive” SIGINT collection

Page 5:

• The second paragraph on the IC’s “Refined Process on SIGINT Targeting” describing how, if the senior policymakers decide the risks of collection on a target outweighs its value, they will terminate the collection
• Four paragraphs on “Assessing IC Reporting,” describing how ODNI performs a quantitative (counting reports, including those that get into important reports like the President’s Daily Briefing) and qualitative review of resources dedicated to priorities and production from those units

Page 6 (a half page):

• Two paragraphs on other processes
  • One paragraph noting that individual elements conduct their own assessment
  • One paragraph describing the Intelligence Community Inspector General’s own assessments, noting especially that USA Freedom Act required he complete an assessment of the information acquired under FISA’s Business Records provision
• One paragraph describing a “Path Forward” that might include using prediction markets to identify the most valuable intelligence, but noting such an approach is in a “nascent stage”

Overall, there are just three pages of meat, none of which is terrifically impressive.The reference to the USAF report on assessing the value of intelligence coming from a program underscores that such reporting requirements don’t exist for all other programs. And nowhere in the discussion is any consideration whether the same information might be acquired via less intrusive means (as has happened with the phone dragnet), something that would seem central to balancing trade-offs.

In short, it’s not so much a real process for assessing the value of intelligence against the risks of it, rather than a declaration that policymakers (you know? The people who want to expand their budgets?) will decide.

 

Waving the Constitution at Those Who Ignore It

I waved my pocket copy of the Constitution at Nancy Pelosi on July 19,2008. Khizr Khan waved his at Donald Trump on July 28,2016.

In real time Thursday night, I caught only the final few seconds of Khizer Khan’s powerful speech at the Democratic National Convention in Philadelphia. Through the rest of Thursday and Friday, more and more of the details of the speech flitted through my Twitter stream and then my heart was warmed when I saw photos of Khan pulling out his pocket copy of the Constitution and waving it at Donald Trump. Almost exactly eight years ago, I had done the same thing, waving my pocket copy at Nancy Pelosi, who then was Speaker of the House and appearing at Netroots Nation in Austin.

Khan was confronting Trump about his campaign in which he had noted that “Trump consistently smears the character of Muslims. He disrespects other minorities, women, judges, even his own party leadership. He vows to build walls and ban us from this country.” (Quotes come from this copy of Khan’s transcript.) Khan then continued, presumably in reference to banning Muslims from the US: “Donald Trump, you are asking Americans to trust you with our future. Let me ask you: Have you even read the U.S. Constitution? I will gladly lend you my copy.”

In my case, as I noted here and then in a follow-up a couple of months later here, I was urging Pelosi to act on the clear evidence that the George W. Bush administration had committed war crimes including torture. Sadly, as we now approach the end of two terms with Barrack Obama as President, no significant Bush Administration official has faced any consequences for the torture and other war crimes carried out in our name. Further, despite clear-cut evidence of many crimes by banksters in the massive foreclosure fraud crisis that dispossessed a significant proportion of the US middle class, no significant prosecutions have been undertaken by the Department Formerly Known as Justice.

Khan is so right to wave the Constitution in Trump’s face. Note that a central feature at recent Trump rallies has been endless chanting of “Lock her up”, calling for prosecution of Hillary Trump for crimes associated with her use of a private email server (and presumably also for Benghazi!!1!) while serving as Secretary of State.

And that is where I see potential huge danger for our dear Constitution. We already have seen failure to prosecute crimes of tremendous impact to the world and to ordinary citizens here at home. Should Trump win, how could a “Justice Department” that already has shown a willingness to ignore the law in response to the desires of two presidents in a row refuse Trump’s insistence that Clinton be incarcerated through massive overcharging of any technical violation (if it even occurred, which is a huge stretch on its own) on the email front and totally fabricated charges on Benghazi.

Thank you, Khizr Khan for reminding our country that we are founded on what should be a sacred document that lays out how we should establish justice. And thank you for the sacrifice of your son Humayun, who was lost while taking part in an ill-advised war in which many of the war crimes discussed above were carried out.

Here is the full video of Khan’s speech. Standing next to him is his wife, Ghazala Khan.