“It was the privatization of warfare.”

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I owe ROTL a hubcap, apparently, because while I’ve been distracted with the joy of moving in a historically bad housing market, the US won its long extradition battle over Viktor Bout.

Coincidentally, I actually found Douglas Farah’s book on Bout, Merchant of Death, half-read a few weeks ago, as I was packing up the house. So in the days before the Thai court agreed with the US extradition request, I picked up reading of Bout’s exploits during the Afghan and Iraqi wars. And reading the story at this distance, particularly given Russian efforts to prevent Bout’s extradition, I couldn’t help but think the US underplayed Russian involvement in Bout’s exploits.

Which one of the men who investigated Bout for years, Robert Eringer, seems to support.

Former FBI counterintelligence Robert Eringer, who until recently headed the Monaco Intelligence Service, doesn’t think so. In 2002, Eringer investigated Bout’s money-laundering activities, which were allegedly facilitated through Monaco by US-registered company Pastor International. Eringer claims that Russian weapons merchants, including Bout, used the company to launder nearly one billion dollars in sales profits between 1996 and 2001. But Eringer claims to have made another discovery during his investigation: namely that Bout had been “co-opted by the Russian external intelligence service (SVR)” and had been offered shelter by the Russian Federal Security Service in Moscow, despite being named in an international arrest warrant issued by Interpol.

I guess we’ll see whether there have been more formal ties between Bout and Russia (as well as what role Russian organized crime plays in the relationship) as his trial develops here in the states.

But the question is worth asking for what it might say about how countries enact foreign policy as globalization continues to erode the nation-state. In that model, ostensibly private arms dealers repeat the role our government (and Russia’s) did during the Cold War, destabilizing countries in a fight over spheres of influence. Of course, as weapons proliferate, the danger of it all increases.

Here’s what Farah had to say to NYT about the US’ long pursuit of Bout.

Mr. Farah said the United States began pursuing Mr. Bout in the 1990s after officials became alarmed that he was making conflicts more deadly by showering warring parties with weapons on an unprecedented scale, including weapons as sophisticated as attack helicopters.

“They became aware in the mid-1990s that he had fundamentally altered the way wars were being waged,” Mr. Farah said. “He was flying in planeloads of this stuff. There was a lot of alarm that we were facing something new. It was the privatization of warfare.”

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In First Act as DNI, James Clapper Adds to Redundancy Competitive Analysis

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When James Clapper testified before the Senate Intelligence Committee, he rejected one of the central criticisms in the WaPo’s Top Secret America series–that the redundancy in the Intelligence Community contributed to waste and intelligence failures.

Clapper disputed criticism of redundancy in intelligence programs, saying that duplication is sometimes a conscious decision. “One man’s duplication is another man’s competitive analysis,” he said.

Perhaps it should come as no surprise, then, that his first act as DNI is to add to the redundancy.

After my second week on the job, I wanted to let you know what an honor it is to be leading this Community of such skilled and dedicated professionals.

When President Obama asked me to lead the Intelligence Community he said he wanted someone who would continue to build our enterprise into an integrated team.  I have begun to embark on that process and wanted to share with you a few of my initial thoughts and plans.

I have asked DIA Deputy Director Robert Cardillo to join ODNI in the newly-created role of Deputy Director for Intelligence Integration.  While the specifics of this position are still being developed, it unites the roles of Analysis and Collection to elevate information sharing and collaboration between these two essential functions.

Admittedly, Clapper doesn’t explain what he just hired a top DOD intell guy to do, but it sure seems like it overlaps with the mandate of the National Counterterrorism Center.

NCTC serves as the primary organization in the United States Government for integrating and analyzing all intelligence pertaining to terrorism possessed or acquired by the United States Government (except purely domestic terrorism); serves as the central and shared knowledge bank on terrorism information; provides all-source intelligence support to government-wide counterterrorism activities; establishes the information technology (IT) systems and architectures within the NCTC and between the NCTC and other agencies that enable access to, as well as integration, dissemination, and use of, terrorism information.

NCTC serves as the principal advisor to the DNI on intelligence operations and analysis relating to counterterrorism, advising the DNI on how well US intelligence activities, programs, and budget proposals for counterterrorism conform to priorities established by the President.

And the move is all the more bizarre given that Clapper only has this job because the Administration chose to fire Dennis Blair rather than hold Michael Leiter, the Director of the NCTC, responsible for failing to connect the dots on the UndieBomber attack, even though it appears that Leiter deserves more of the blame. So if I’m right that this new position is duplicative of the NCTC position, then the Administration has chosen not to fire the guy most responsible for missing the UndieBomber clues, and instead fire the DNI and replace him with a guy that–rather than firing the guy most responsible for missing the UndieBomber clues–will instead just create a second version of that guy’s position.

Now in an ideal world, the next time someone misses an attack, we’ll be justified in firing Clapper, since he’s the guy who opted for redundancy rather than holding one person responsible. But I’m guessing by then Clapper will be capitalizing on his inevitably short tenure as DNI, getting rich heading six or eight intelligence contractors.

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US Paramilitaries in Colombia: Now Twice as Illegal

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Remember that Jeremy Scahill report that listed Colombia among the 75 places where JSOC has deployed?

The Nation has learned from well-placed special operations sources that among the countries where elite special forces teams working for the Joint Special Operations Command have been deployed under the Obama administration are: Iran, Georgia, Ukraine, Bolivia, Paraguay, Ecuador, Peru, Yemen, Pakistan (including in Balochistan) and the Philippines. These teams have also at times deployed in Turkey, Belgium, France and Spain. JSOC has also supported US Drug Enforcement Agency operations in Colombia and Mexico. The frontline for these forces at the moment, sources say, are Yemen and Somalia. “In both those places, there are ongoing unilateral actions,” said a special operations source. “JSOC does a lot in Pakistan too.”

In my post on it, I noted that we’re engaging in belligerent activities without apparent legal approval to do so. But that was because this program seemed to use the legal approval to fight al Qaeda to fight other entities, like Latin American leftist terrorist or drug cartels.

Wednesday, the Colombian aspect of our paramilitary activities became even more illegal, because a Colombian court struck down that country’s cooperation agreement with the US because it lacked Congressional approval. (h/t Max Fisher who has a bunch of interesting links on this development)

A high court in Colombia has voided an accord with the United States that would allow an increased U.S. presence on seven Colombian military bases. The ruling on Tuesday by the Constitutional Court declared the agreement signed by outgoing President Alvaro Uribe unconstitutional because it bypassed approval of the Congress.

The agreement was signed in October and faced intense criticism from Colombia’s more left-leaning neighbors, including Venezuela and Bolivia. President Juan Manuel Santos (pictured above right), who was inaugurated on Aug. 7, enjoys a wide political majority in Colombia’s Congress and told reporters Wednesday that the ruling would have no effect on cooperation between the U.S. and its closest ally in Latin America.

It may well be that Uribe’s successor, Santos, simply gets Congressional approval for this. But until that happens, this decision serves to heighten questions about US involvement in Latin American, not least with regards to incursions into populist Venezuela and Ecuador.

As Adam Isacson explains, this won’t prevent US paramilitaries from doing what they have already been doing.

U.S. military and contractor personnel were still acting under the authorities laid out in a series of old accords (1952, 1962, 1974, 2004, 2007), whose validity the Colombian court did not challenge.Under these old accords, U.S. personnel have already been frequently present at the seven bases listed in the DCA, as well as several others. The difference is that today, there is no “free entry”: each U.S. deployment is subject to a series of Colombian government approvals that would be unnecessary under the DCA. It also means that construction of new facilities at the Palanquero airbase in Puerto Salgar, Cundinamarca – for which Congress appropriated $46 million in 2010 – cannot yet begin.

But it may result in more scrutiny–in Latin America, at least–at what our troops and contractors are doing. (It also may increase pressure on the Administration to pass the free trade accord with Colombia.)

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I’ll Take Choice “C:” Civil Society

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Barely expressed in the NYT’s long story about our use of paramilitary strikes in places we’re not officially at war is a conflict between three choices. The NYT piece describes the first two–a covert war run by CIA and briefed to Congress, or a covert war run by JSOC subject less oversight–as the choice the Administration is currently debating.

The Yemen operation has raised a broader question: who should be running the shadow war? White House officials are debating whether the C.I.A. should take over the Yemen campaign as a “covert action,” which would allow the United States to carry out operations even without the approval of Yemen’s government. By law, covert action programs require presidential authorization and formal notification to the Congressional intelligence committees. No such requirements apply to the military’s so-called Special Access Programs, like the Yemen strikes.

Implicit in the choice, is the question of whether or not we want to partner with the Yemeni government as we launch attacks on extremist groups in the country.

In part, the spotty record of the Yemen airstrikes may derive from another unavoidable risk of the new shadow war: the need to depend on local proxies who may be unreliable or corrupt, or whose agendas differ from that of the United States.

American officials have a troubled history with Mr. Saleh, a wily political survivor who cultivates radical clerics at election time and has a history of making deals with jihadists. Until recently, taking on Al Qaeda had not been a priority for his government, which has been fighting an intermittent armed rebellion since 2004.

And for all Mr. Saleh’s power — his portraits hang everywhere in the Yemeni capital — his government is deeply unpopular in the remote provinces where the militants have sought sanctuary. The tribes there tend to regularly switch sides, making it difficult to depend on them for information about Al Qaeda. “My state is anyone who fills my pocket with money,” goes one old tribal motto.

The Yemeni security services are similarly unreliable and have collaborated with jihadists at times. The United States has trained elite counterterrorism teams there in recent years, but the military still suffers from corruption and poor discipline.

So we are partnering with forces with occasional ties to our enemies, but the Administration fights fully briefing this stuff to Congress for fear it will be leaked?

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Mr. “Newsweek” Jane Harman’s Role in the Intelligence Industrial Complex

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You all know I’m a big fan of the work Tim Shorrock has done to track the dangers of the privatization of the intelligence industrial complex. Today, he kicks off an ongoing relationship with the Daily Beast–so now we can read at the Daily Beast what the WaPo will cover in two years in warmed-over form. Today’s article traces the role that Jane Harman’s husband and the guy who just bought Newsweek for $1, Sidney, has in an intelligence advisory group called “Business Executives for National Security.”

But few in Washington are aware that the real intelligence insider of the Harman family may be Sidney himself, through his connections to an obscure but highly influential organization known as Business Executives for National Security.

[snip]

Founded by [Stanley] Weiss, a mining and chemical executive who for years served as a director of Harman’s audio-equipment company, BENS today represents about 350 of the country’s largest manufacturing, transportation, information technology, communications, and national-security firms.Harman himself chaired the organization’s executive committee from 1982 to 2009 and “contributed over $1 million over the years” to the organization, Weiss told The Daily Beast in an email from Indonesia. Although its CEO, retired Army General Montgomery C. Meigs, manages the organization, its corporate members, led by Harman, have set the pace. “Dr. Harman played an important role [in BENS] for a quarter century,” Weiss told me. “He was deeply involved in all aspects of BENS’ work.” Harman could not be reached for comment.

Shorrock goes on to describe how BENS has been pushing privatization since the Clinton Administration, and just last month recommended further opportunities for profiteering to the Obama Administration.

Just last month it was asked by Obama’s Defense Department to review its recommendations for reducing the cost of military business operations. It came up with a dense, three-page list of suggested changes, among them: outsourcing more “non-core functions” and a recommendation that the Pentagon eliminate “the practice of treating ‘excessive profits’ as improper.”

And yeah, Shorrock points out that her husband’s role in outsourcing intelligence was a conflict of interest when Jane Harman chaired the House Intelligence Committee (and she still chairs the Intelligence Subcommittee at the Committee on Homeland Security). But seeing as how we’ve got DiFi, another spouse of a big MIC contractor, currently running the Senate Intelligence Committee, I guess we should just write that off as par for the course, huh?

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GAO Audits and Poppy Bush’s Covert World

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Steven Aftergood has an important update on the continuing saga of whether or not GAO can conduct investigations of intelligence activities. He explores the source of current restrictions on GAO review: a 1988 OLC opnion written by Douglas Kmiec.

The current dispute between the Obama Administration and some members of Congress over whether to strengthen oversight of intelligence programs by the Government Accountability Office is rooted in a 1988 opinion from the Justice Department Office of Legal Counsel (OLC), which held that GAO access to intelligence information is actually barred by law.

In 1988, the GAO requested access to intelligence files concerning Panama as part of an investigation of U.S. policy towards Panamanian leader Manuel Noriega.  In response to an inquiry from the National Security Council, the Office of Legal Counsel issued an opinion (pdf) stating that the GAO was not entitled to the requested records on Panama and Noriega.  Not only that, but the opinion (written by Acting OLC head Douglas W. Kmiec) concluded categorically that “GAO is precluded by the Intelligence Oversight Act from access to intelligence information.”

Today, the FBI cites that 1988 opinion to justify its refusal to permit GAO to perform a review of the FBI counterterrorism program and other matters previously studied by GAO.

The 1988 OLC opinion “has had a broad negative impact on our access to information at the FBI and several other agencies that are part of the intelligence community,” wrote Acting Comptroller General Gene L. Dodaro in a recent letter (pdf).

Aftergood goes on to explore the troubling current use of this 1988 opinion protecting raw intelligence to protect more function-oriented reviews of Executive Branch counter-terrorism activities.

But I couldn’t get by the multiple levels of irony of the OLC opinion itself.

The OLC opinion was written in response to a June 23, 1988 letter asking to what extent GAO could investigate whether Executive Branch foreign policy making adequately accounted for the illegal activities of top foreign officials like Manuel Noriega.

This memorandum is in response to your request for the opinion of this Office on whether, or to what extent, the Administration has a legal basis for declining to cooperate with the pending General Accounting Office (“GAO”) investigation concerning U.S. foreign policy decisions with respect to Manuel Noriega. In its June 23, 1988 letter to the National Security Council, GAO described the nature and purpose of the investigation: In order to evaluate whether “information about illegal activities by high level officials of other nations may not be adequately considered in U.S. foreign policy decisions . . ., the General Accounting Office is undertaking an initial [*2] case study of how information about General Noriega was developed by various government agencies, and what role such information played in policy decisions regarding Panama.” As stated in the National Security Council’s response to GAO of July 13, 1988, representatives of GAO have made it clear that GAO’s “three areas of interest [are] intelligence files, law enforcement files, and the deliberative process of the Executive branch, including internal communications and deliberations leading to Executive branch actions taken pursuant to the President’s constitutional authority.”

The GAO investigation, then, would have been a part of Congress’ (and, to a significant extent, John Kerry’s) larger attempt to investigate BCCI and Noriega and CIA involvement in the drug trade. Just as importantly, the request and the August 16, 1988 response would have taken place in the shadow of a Presidential election that would result in Poppy Bush’s election. Read more →

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Why Isn’t Obama Clearing Brush on PDB Day?

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Nine years ago today, George W Bush was informed that “Al Qaeda [was] determined to strike in US.”

And then he went out to clear more brush at his pig farm in Crawford.

Obama is showing no such presidential manliness in the second year of his term. Yesterday, his Justice Department actually indicted 14 of those who were materially supporting al-Shabaab, which is determined to strike at the US.

And today, in addition to getting his own PDB and Economic Daily Brief and meeting with Secretary of State Hillary Clinton, Obama will celebrate the confirmation of just the fourth woman to serve on the Supreme Court (may Elena Kagan be as much of a pleasant surprise on the Court as Sonia Sotomayor has), and will talk about the economy at a small business (though it’d be nice if he did more than talk…).

I may not love everything President Obama is doing on PDB day and every day. But at least he’s doing something more than clearing brush on a pig farm.

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Picking and Choosing Which Journalistic Outlets to Treat as Journalistic Outlets

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Tuesday, Philip Shenon reported that Wikileaks wanted the Defense Department’s help reviewing the next batch of documents it will release for names that should be redacted.

Julian Assange wants the Pentagon’s help.

His secretive WikiLeaks website tells The Daily Beast it is making an urgent request to the Defense Department for help reviewing 15,000 still-secret American military reports to remove the names of Afghan civilians and others who might be endangered when the website makes the reports public.

[snip]In a phone interview Tuesday with The Daily Beast, Schmitt said the site wanted to open a line of communication with the Defense Department in order to review an additional 15,000 classified reports in an effort to “make redactions so they can be safely published.” Schmitt said that these reports also relate to American military operations in Afghanistan.

It was a good play from Wikileaks, as it would place Wikileaks in the same position as newspapers like NYT and WaPo which occasionally spike information the government says is particularly sensitive. However, the government chose to pretend it doesn’t have this kind of conversation all the time, and also to pretend that it doesn’t regularly do FOIA reviews for this kind of information.

Instead, DOD spokesperson Geoff Morrell, doing his best Agent Smith imitation, “demand[ed]” that Wikilieaks return all the documents it has received, repeating “do the right thing” over and over.

Of course, no other journalistic outlet would do what Morrell called “doing the right thing.” (To the credit of some of the journalists covering Morrell’s Agent Smith show, they seem somewhat dubious of the claims logic.)

Meanwhile, DOD has also revoked Michael Hastings’ permission embed in Afghanistan, claiming the unit in question does not trust Hastings (though the move appears to be retaliation for Hastings’ refusal to cooperate in a DOD IG probe of Hastings’ article).

The government is not supposed to license favored press in this country. But what DOD is doing is choosing only to play ball with those outlets with which it is chummy enough to largely influence the coverage of.

Which I suppose makes it different than a license. It’s like a membership in a secret tree house that you’ve got to know the secret password to belong to.

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Holding Up Intelligence Reform, Clapping to Administration Demands

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So after a last minute dance with three Republican holds, James Clapper is poised to be confirmed as Director of National Intelligence. As I noted before, this means someone most Senators either have or have had concerns about will be approved by big numbers to head our intelligence community.

But the more important story about this nomination seems to be about holds and reform.

As I noted before, John McCain briefly put a hold on Clapper’s nomination. As Marc Ambinder explains, he did so as leverage to demand information on a satellite program over which Congress and the Administration has clashed.

The Director of National Intelligence’s office has sent Sen. John McCain’s office its top secret report on the development of two “tier-two” electro-optical satellites that Congress doesn’t want funded but the intelligence establishment believes it desperately needs. Neither McCain’s office, the White House, nor the DNI would confirm that McCain was seeking information about the highly classified development program, nor would they say why it took so long to send McCain the report he requested.

In parallel with McCain’s hold, Kit Bond and Tom Coburn–who, as Senate Intelligence Committee members, both voted for Clapper’s nomination in the Committee–put a hold on Clapper’s nomination as leverage to get a report on threat assessments of people at Gitmo.

The Cable caught up with Senate Intelligence Committee chairwoman Dianne Feinstein, D-CA, who said that two other senators were holding up the nomination, committee ranking Republican Kit Bond, R-MO, and Tom Coburn, R-OK. The senators wanted ODNI to deliver an overdue threat assessment on the prisoners being held at Guantánamo Bay, Cuba.

[snip]

Bond told The Cable Tuesday that he is getting the information he desires.

“Today I talked to General Clapper and I’m pleased the intelligence community is now working to provide the documents and access that I — and other members — have been seeking and that they are required by law to share with lawmakers,” he said.

Coburn also denied he has a formal “hold” on Clapper but said he was worried about the Guantánamo threat assessment.

“I think it’s important that we look at the vast number of people that have been released under the Bush administration and the Obama administration from Guantánamo who are now trying to kill American soldiers,” he said. “And I think that information is due and the intelligence committee ought to be getting it. So I am trying to do whatever I can to make good decisions.”

So prepare for James Clapper to take over at DNI!

And with his confirmation, expect Congress to lose the leverage it had to force the Administration to accept some real intelligence reform, reform that would, among other things, require Presidential Administrations to share information required by Congress more readily and widely.

So note the irony. The Ranking Member of the Senate Armed Services Committee, John McCain, had to put a hold on this urgent nomination to get information that he doesn’t get (Ambinder says the Gang of Eight gets briefed on it, but not SASC; I think it more likely that a few members of the Senate Appropriations Committee get briefed on it, but neither the Gang of Eight nor the leadership of SASC). And the Ranking Member of the Senate Intelligence Committee, Kit Bond (as well as Tom Coburn, who never met a hold he didn’t like), had to put a hold on this urgent nomination to get information he hadn’t get but was entitled to by law.

And yet no one finds this state of affairs urgent enough to make real changes in intelligence oversight such that individual Senators don’t have to find similar holds with which to gain enough leverage to get the information they need to do their job?

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Is the Government Using OFAC to Prevent Due Process?

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The ACLU and CCR just had a conference call to talk about their suit challenging the licensing scheme the Treasury Department’s Office of Foreign Asset Control uses to prevent lawyers from representing those on OFAC’s designated terrorist list. Much of the discussion pertained to whether Anwar al-Awlaki could be legitimately considered an enemy combatant given his alleged incitement of attacks on the US.

But I was most interested in the timing. As the CCR summary notes, Awlaki’s father, Nasser al-Awlaki, first retained the ACLU and CCR in “early July” to challenge the assassination order on his son on due process grounds. Within weeks, on July 16, 2010, the government designated Anwar al-Awlaki a specially designated global terrorist. At that point, ACLU and CCR had to stop their work on suing the government and apply for a license allowing them to represent the Awlakis. As ACLU Executive Director Anthony Romero noted, listing Awlaki put lawyers in neutral, “while we were in 3rd or 4th gear a few weeks ago” as they wait for the bureaucratic process of getting a license play out.

I asked whether they thought this was intentional–that is, whether they thought the government had designated Awlaki a terrorist so as to make it harder for the ACLU and CCR to represent him. Romero admitted the timing of the listing “did raise our eyebrows.” He said the timing raises the question of “whether OFA is being used to impede lawyers’ ability to challenge” programs like the kill list. And ACLU Attorney Ben Wizner noted how long after the government put Awlaki on the kill list it was before they started to designate him a terrorist and freeze his assets.

Implicit in my question was how the government knew the ACLU and CCR were representing the Awlakis. I will work to clarify that, though Romero did say that the lawyers on the case had traveled to Yemen and started meeting with the family.

In any case, add the timing of the government’s designation of Anwar al-Awlaki as a terrorist to the list of other things that already stink about the government’s efforts to kill him with no due process.

Note: The quotes in this are my transcriptions of the call itself. Since I’m mid-move, I didn’t manage to record the call, but will check the quotes for attribution and accuracy later this PM.

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