DiFi Will Cave on Intelligence Reform

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As I’ve noted before (here and here), confirmation hearings for James Clapper have gotten bogged down in a dispute between the Administration and both houses of Congress over whether Congress should have the tools to exercise real oversight of intelligence functions.

Right now, Nancy Pelosi is holding out for both extended notification to the Intelligence Committees and GAO audit power over intelligence community functions. But, in spite of earlier claims that she would not hold a confirmation hearing for Clapper until the intelligence authorization passed, DiFi now appears to be softening that stance. She told Chris Wallace yesterday that she will move forward with confirmation hearings provided that Obama chat to Pelosi about her intelligence related concerns (starting at 14:07).

Chris Wallace: One of your other hats that you wear is Chairman of the Senate Intelligence Committee–Director of National Intelligence Blair has been fired. The Acting Director Gompert is resigning. Meanwhile, House and Senate Democrats are deadlocked over the intel reform bill and the whole question of Congressional oversight of spy agencies. How quickly are you going to get this resolved and how quickly are you going to confirm so that we have a Director of National intelligence?

Feinstein: Well the process has begun, he has received the questions. On Friday–

Wallace: This is General Clapper?

Feinstein:  Yes, General Clapper. Friday I learned the questions have been answered. They were at the White House. We would expect to receive them this week. We can move. I have requested that the President call the Speaker and try to move our Intelligence bill. the reason the Speaker has a problem with it is because we removed two things which the White House found to be veto-able. One was an extension of notification on certain very sensitive matters to all Members rather than the Gang of Eight. The second was Government Accountability Office, we call it the GAO, oversight which was anathema to the White House. We took that out. The bill passed the Senate, our committee, and the Senate unanimously. We have conferenced it, we’ve pre-conferenced it, with the House Committee. We believe we are in agreement, we’re ready to move. If the Speaker will allow them to go to conference then we can move the bill–

Chris Wallace: But very quickly, will you hold up confirmation hearings for Clapper until you get resolution on the intel report?

Feinstein: Well, I have asked that the President would please talk to the Speaker. If he does that, I will move ahead.

Now, to be fair, Obama’s threatening a recess appointment for Clapper in any case. And–as Wallace pointed out–the resignation of  Acting Director of National Intelligence David Gompert and the planned retirement of his possible replacement has ratcheted up pressure to get a permanent replacement in (I’ll point out once again that there seems to be a double standard between the treatment of ODNI and OLC). So the choice is likely between a recess appointment with no intelligence reform and a confirmation hearing with intelligence reform (Clapper’s approval is not assured).

But Pelosi’s making a stand to fix two of the problems that the Bush Administration exploited–and which the Obama Administration, particularly given their veto threat, may plan to exploit as well. DiFi appears to be saying that the principle of real Congressional oversight is worth nothing more than a conversation with the President.

A Recess Appointment for Militarized Spooks But Not for Rule of Law

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Remember how Dawn Johnsen’s nomination to head OLC languished and then died as Obama claimed–falsely–not to have the votes? Obama pointedly didn’t use a recess appointment to put his incredibly qualified candidate in the post.

Not so for James Clapper, whom Obama is preparing to recess appoint to head Director of National Intelligence rather than make concessions on intelligence oversight to Congress. As Marc Ambinder reports, DiFi won’t hold hearings for James Clapper until an intelligence authorization is passed, but Nancy Pelosi wants to use that intelligence authorization to force the Administration to expand notice on covert programs. And since that’s all going to take a lot of time (and Obama doesn’t want to be forced by Congress to expand notification), Obama’s likely to recess Clapper.

So not just is Obama appointing someone who wants to dismantle DNI even while Congress thinks it should be strengthened, but he’s doing so in such a way that deliberately avoids reestablishing the balance of power between the branches of government.

Hey, Obama? All that crazy covert stuff that will expand in DOD under Clapper? All the problems that’s going to cause? You own that.

The Return of CIFA. Now, with Interrogation Capabilities!

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Jeff Stein notes that the Defense Intelligence Agency has plans to set up a new records center for its counterintelligence operation.

The Defense Intelligence Agency wants to open a new repository for information about individuals and groups in what appears to be a successor to a controversial counterintelligence program that was disbanded in 2008.

The new Foreign Intelligence and Counterintelligence Operation Records section will be housed in DIA’s Defense Counterintelligence and Human Intelligence Center, or DCHC, formed after the demise of the Counterintelligence Field Activity, or CIFA, according to an announcement that appeared Tuesday in the Federal Register.

As Stein notes, DCHC replaced CIFA, the DOD organization that got caught spying on Quakers and the blogger Jesus’ General. And now, they apparently want to set up a system that will be subject to the Privacy Act.

The Defense Intelligence Agency proposes to add a system of records to its inventory of record systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended.

Which I presume means they’ve got records of Americans in there.

Two points on this. First, as Mark Ambinder recently reported, the organization that took over CIFA’s activities, DCHC, is also the organization running our black site prison in Afghanistan.

It has been previously reported that the facility, beige on the outside with a green gate, was operated by members of a Joint Special Operations Command (JSOC)  group, allegedly outside of Harward’s jurisdiction. But JSOC, a component command made up of highly secret special mission units and task forces, does not operate the facility.

Instead, it is manned by intelligence operatives and interrogators who work for the DIA’s Defense Counterintelligence and Human Intelligence Center (DCHC). Read more →

Killer Drones Coming To America!

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Like all new fads that start overseas and eventually make their way here to the US as the next “new thing”, drones are on their way to our friendly skies. From AP via Google News:

Unmanned aircraft have proved their usefulness and reliability in the war zones of Afghanistan and Iraq. Now the pressure’s on to allow them in the skies over the United States.

The Federal Aviation Administration has been asked to issue flying rights for a range of pilotless planes to carry out civilian and law-enforcement functions but has been hesitant to act. Officials are worried that they might plow into airliners, cargo planes and corporate jets that zoom around at high altitudes, or helicopters and hot air balloons that fly as low as a few hundred feet off the ground.

On top of that, these pilotless aircraft come in a variety of sizes. Some are as big as a small airliner, others the size of a backpack. The tiniest are small enough to fly through a house window.

Exciting! Cops want to use them to catch speeders, monitor traffic and track suspects (that is pretty much all of us). Border Patrol and Sheriff Joe Arpaio want to use them to chase down the brown (skinned that is). Fed Ex wants them so they don’t have to actually pay pilots. And the NSA wants them to spy on “suspicious” people (like the writers on this blog). Hey, it’s all good; what’s the loss of a little privacy when it comes to protecting America?

There is a tremendous pressure and need to fly unmanned aircraft in (civilian) airspace,” Hank Krakowski, FAA’s head of air traffic operations, told European aviation officials recently. “We are having constant conversations and discussions, particularly with the Department of Defense and the Department of Homeland Security, to figure out how we can do this safely with all these different sizes of vehicles.

Excellent! Because I will feel a lot better when the DOD and DHS have the “civilian airspace” saturated with their freaking drones; won’t you? Of course you will. And we are on the way there too. From Government Executive:

The Homeland Security Department expanded the use of unmanned drones along the U.S.-Mexico border this week, flying for the first time this sort of advanced technology in west Texas.

The Predator B unmanned aerial vehicle is providing support to U.S. Customs and Border Protection to help interdict drug smugglers and detect people trying to enter the United States illegally, key lawmakers said.

Texas lawmakers have been clamoring for years to have an unmanned drone assist in border security operations, but the move had been delayed by bureaucratic wrangling between DHS and the Federal Aviation Administration. Drone flights along the Southwest border had been limited to regions in Arizona and New Mexico.
……
By putting eyes in the sky along the Rio Grande, we will gather real-time intelligence on the ground to augment the good work of federal, state and local law enforcement….

Well, so drones are here among us, at least those of us near the Mexican border; and they are here to stay. Government drones are going to be ever more pervasive and ubiquitous throughout the entirety of the country if the law and order types in the federal, state and local governments have anything to say about it. And they will have their say; count on it. Swell, eh?

So, with all of the Afghani, Pakistani and Iraqi wedding parties that have been taken out by US Predator drone strikes, how long before they hit one of our precious wedding celebrations right here in the homeland of the good old “real America”? What will the NeoCon wingnuts say when it hits their own chosen ones?

[Incredibly awesome graphic by the one and only Darkblack. If you are not familiar with his work, or have not seen it lately, please go peruse the masterpieces at his homebase. Seriously good artwork and incredible music there.]

White House Won’t Tell DNI It Should Be More Powerful

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Now for your latest installment of DOD’s expanding intelligence authorities, DNI’s increasing irrelevance, and the White House’s efforts to make sure those trends continue.

As you’ll recall, back in March, the Senate Intelligence Committee sent a scathing report on the many failures to stop the Undie Bomber. The report was most critical of the head of the National Counterterrorism Center, Michael Leiter. But instead of replacing Leiter right away, the Administration sat on the report for two months until it became public, and then used the report as its excuse to fire Director of National Intelligence Dennis Blair as the scapegoat for the Christmas Day attack. The White House reportedly tried to get either Leon Panetta or Chuck Hagel to take over, but after they refused, Obama nominated James Clapper, over the objections of both the Democrats and Republicans who need to confirm the position on SSCI. Two things make this worse: in the face of the need to scale back DOD’s intelligence portfolio to better balance our intelligence community as a whole, DOD has instead been expanding it. And Clapper signed an April memo arguing against a range of controls Congress was trying to put on DOD’s intelligence activities.

It turns out that in addition to SSCI’s March report finding NCTC most responsible for the Christmas Day attack, and Clapper’s April report calling for DOD to keep its expansive intelligence powers, the President’s Intelligence Advisory Board was issuing its own report, finished in March and sent to Congress on April 1. The report calls for a stronger DNI–precisely what Congress is trying to do but DOD and the White House are trying to prevent.

But the White House has not shared the report with the DNI’s office.

The White House has withheld a key report, which maps out a strategy for fixing the troubled Director of National Intelligence, from the Office of the Director of National Intelligence. The classified report, “Study of the Mission, Size, and Function of the Office of the Director of National Intelligence,” was completed by the Presidential Intelligence Advisory Board (PIAB) at least as early as March, several weeks before President Obama asked DNI Dennis Blair to resign. The report came at an inopportune time for the White House, which has pursued a policy course counter to the report’s advice.

Multiple sources within the Office of the Director of National Intelligence tell The Atlantic that the office, which employs about 1,500 people including the director himself, never received the report. The White House would not comment on how it was distributed, but Assistant Press Secretary Tommy Vietor said, “The study you reference was shared with DNI Blair, who provided us comments on the findings.” However, the findings are only a brief summary of the report’s unclassified sections; they are also freely available on Politico’s website. The full report, which is classified, has not been shared.

Of particular import here is the White House’s organized blow-off of Congress. Congress commissioned the PIAB report last year as part of the 2010 Defense Authorization.

Congress commissioned the PIAB report late last year as part of the 2010 Department of Defense Appropriations Act, requiring the board to evaluate the DNI and offer proposals for improving it.

At the same time, Congress included some provisions in the 2010 Intelligence Authorization–things like controls on expenditures and expanding budgets, review of the use of contractors, and an Inspector General for the entire intelligence community–that would strengthen the DNI and rein in DOD. SSCI sent a report to the White House in March that the White House used to start planning the ouster of Dennis Blair, who was sympathetic to the goal of a stronger DNI. And at the same time, the White House was refusing to share the PIAB report which would have strengthened Blair’s hand. Against the background of the report showing that the President’s advisory board thinks Congress, not DOD, is right about how the Intelligence Community is organized, the White House sends the Clapper nomination–which is designed to do just the opposite.

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Cables on Church Sex Scandal among those Sent to Wikileaks

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Threat Level posted a quarter of the chat logs between alleged Wikileaks leaker Bradley Manning and hacker Adrian Lamo (it didn’t post those with particularly personal or potentially dangerous national security information).

While the logs don’t provide many details about what was in the 260,000 State Department cables that has the government so spooked, they do reveal that some of the cables pertain to the Vatican’s position on the Church’s sex scandals.

(1:45:16 PM) Manning: hundreds of them
(1:45:40 PM) Lamo: like what? I’m genuinely curious about details.
(1:46:01 PM) Manning: i dont know… theres so many… i dont have the original material anymore
(1:46:18 PM) Manning: uhmm… the Holy See and its position on the Vatican sex scandals
(1:46:26 PM) Lamo: play it by ear
(1:46:29 PM) Manning: the broiling one in Germany

Sort of makes you wonder why the State Department is discussing what the Vatican thinks about its pedophile priests, doesn’t it? Unless of course our government is tapping the Pope to keep tracks on the Church’s pedophiles…

The Value of Advice and Consent: Clapper Nomination

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I’m going to have more to say about James Clapper’s nomination to be Director of National Intelligence. But for now I want to point out similarities between how the Administration’s treated that nomination and its involvement in primaries.

Two things make James Clapper’s nomination anything but a done deal.

Most important to us little people is Clapper’s certainty in 2003 that we hadn’t found Iraqi WMD because Saddam managed to move all of them to Syria before US troops secured them.

The director of a top American spy agency said Tuesday that he believed that material from Iraq’s illicit weapons program had been transported into Syria and perhaps other countries as part of an effort by the Iraqis to disperse and destroy evidence immediately before the recent war.The official, James R. Clapper Jr., a retired lieutenant general, said satellite imagery showing a heavy flow of traffic from Iraq into Syria, just before the American invasion in March, led him to believe that illicit weapons material ”unquestionably” had been moved out of Iraq.

”I think people below the Saddam Hussein-and-his-sons level saw what was coming and decided the best thing to do was to destroy and disperse,” General Clapper, who leads the National Imagery and Mapping Agency, said at a breakfast with reporters.

Obama wants a man with a history of not questioning his own assumptions to take on a position invented, at least partly, to make sure the intelligence community questions its assumptions to prevent failures like 9/11 and the Iraq War.

The more important problem to the Senate Intelligence Committee–that is, to those with a vote on the matter–is that Clapper has a history of advocating for continued strong military control over intelligence functions, a view that puts him at odds with Dianne Feinstein and Kit Bond and others on SSCI. As Josh Rogin reports,

Yesterday, we reported that the leaders of the Senate Intelligence Committee were resisting the nomination of James Clapper to become the next director of national intelligence because he had argued in an April 28 memo against strengthening that very position.

Today, we have obtained a copy of the memo (pdf), which is entitled, “Discussion Draft: Provisions for FY2010 Intelligence Authorization Act that would expand DNI authorities over leadership and management of DOD’s intelligence components.”

The paper, written by Clapper’s staff, but not signed by Clapper himself, spells out 17 concerns that the Pentagon apparently had with the intelligence policy bill making its way through Congress. It’s clearly an attempt to defend the secretary of defense’s authority over defense intelligence agencies against what the memo’s writers see as encroachment by the Office of the DNI.

[snip]

The administration sees Feinstein’s and Bond’s objections as part of their overall push for greater committee jurisdiction over defense department assets. For their part, Hill sources lament that Clapper’s memo seemed to be criticizing a bill that they thought had already been negotiated with the administration.

Regardless, Feinstein said she won’t move the nomination until her bill gets passed and her concerns are addressed. She meets with Clapper this week.

Read the whole Rogin post–and his earlier post on it–to understand why this is not just about a difference of opinion on the role of DNI and DOD in intelligence, but also about the Administration’s ongoing reluctance to allow Congress to exercise full oversight of the intelligence community.

The point is, the folks who need to approve Clapper’s nomination are none too thrilled about him and it will be very easy to spin a narrative about why he’s the wrong person for the job.

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Alleged Wikileaks Leaker Arrested

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Wired reports that authorities have arrested a military intelligence analyst who had boasted that he leaked two videos, an intelligence report on Wikileaks, and hundreds of thousands of diplomatic cables to Wikileaks.

Federal officials have arrested an Army intelligence analyst who boasted of giving classified U.S. combat video and hundreds of thousands of classified State Department records to whistleblower site Wikileaks, Wired.com has learned.

SPC Bradley Manning, 22, of Potomac, Maryland, was stationed at Forward Operating Base Hammer, 40 miles east of Baghdad, where he was arrested nearly two weeks ago by the Army’s Criminal Investigation Division. A family member says he’s being held in custody in Kuwait, and has not been formally charged.

Manning was turned in late last month by a former computer hacker with whom he spoke online. In the course of their chats, Manning took credit for leaking a headline-making video of a helicopter attack that Wikileaks posted online in April. The video showed a deadly 2007 U.S. helicopter air strike in Baghdad that claimed the lives of several innocent civilians.

He said he also leaked three other items to Wikileaks: a separate video showing the notorious 2009 Garani air strike in Afghanistan that Wikileaks has previously acknowledged is in its possession; a classified Army document evaluating Wikileaks as a security threat, which the site posted in March; and a previously unreported breach consisting of 260,000 classified U.S. diplomatic cables that Manning described as exposing “almost criminal political back dealings.”

“Hillary Clinton, and several thousand diplomats around the world are going to have a heart attack when they wake up one morning, and find an entire repository of classified foreign policy is available, in searchable format, to the public,” Manning wrote.

Wikileaks, however, says it can’t confirm that Manning was the guy who leaked to them, and says they don’t think they have the 260,000 cables.

We never collect personal information on our sources, so we are are unable as yet to confirm the Manning story.

Allegations in Wired that we have been sent 260,000 classified US embassy cables are, as far as we can tell, incorrect.

Which ought to make things interesting. The military is likely to be most interested in learning how the encryption on the video(s) was broken–and whether Wikileaks allegedly got that from Manning or not. That, plus I would imagine they’re interested in breaking Wikileaks’ own code to prevent any further leaking. But if Manning’s telling stories about what he leaked to Wikileaks, it might mean he’s not the guy–or the only guy–who leaked this.

The US Is Defending Not Just Its Closest Ally in Israeli Raid, but Also Approach to War

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I think there’s more to America’s defense of Israel’s attack on the Free Gaza flotilla than simply more blind support for Israel. By defending Israel’s attack, members of the US elite are also defending a problematic legal stance–one that the US has adopted in its own counterterrorist efforts.

Let’s start with this premise: the only way Israel’s attack on the flotilla was legal under international law was if it can argue that it is at war with Gaza–which also means that the only way the attack was legal was if Israel treats Gaza as a state. A number of people have made this observation, but for our purposes Craig Murray’s explanation will suffice.

Every comments thread on every internet site on the world which has discussed the Israeli naval murders, has been inundated by organised ZIonist commenters stating that the Israeli action was legal under the San Remo Manual of International Law Applicable to Armed Conflicts at Sea.

They ignore those parts of San Remo that specifically state that it is illegal to enforce a general blockade on an entire population. But even apart from that, San Remo simply does not apply.

The manual relates specifically to legal practice in time of war. With whom is Israel at war?

There is no war.

Israeli apologists have gone on to say they are in a state of armed conflict with Gaza.

Really? In that case, why do we continually hear Israeli complaints about rockets fired from Gaza into Israel? If it is the formal Israeli position that it is in a state of armed conflict with Gaza, then Gaza has every right to attack Israel with rockets.

But in fact, plainly to the whole world, the nature and frequency of Israeli complaints about rocket attacks gives evidence that Israel does not in fact believe that a situation of armed conflict exists.

Secondly, if Israel wishes to claim it is in a state of armed conflict with Gaza, then it must treat all of its Gazan prisoners as prisoners of war entitled to the protections of the Geneva Convention. If you are in a formal state of armed conflict, you cannot categorise your opponents as terrorists.

But again, it is plain for the world to see from its treatment and description of Gazan prisoners that it does not consider itself to be in a formal position of armed conflict.

Israel is seeking to pick and choose which bits of law applicable to armed conflict it applies, by accepting or not accepting it is in armed conflcit depending on the expediency of the moment.

This is the same principle that says we can’t simultaneously argue CIA can target Predator drones at people in countries we’re not at war with, while at the same time insisting that when Omar Khadr allegedly threw a grenade during hostilities it was illegal.

Yet as last week’s UN report on targeted killings makes clear, both Israel and the US (and some other countries) have tried to make similar claims as they expand the application of targeted killings, including the use of Predator drones.  The report traces the use and dubious legality of targeted killings by Israel against Palestinians to the 1990s and by Russia against Chechnyans to 1999. It’s in that tradition that our own program of targeted killing started shortly after 9/11.

The report goes on to explain why both the US and Israel might be inclined to treat their actions against terrorists as an armed conflict.

47. On the other hand, both the US and Israel have invoked the existence of an armed conflict against alleged terrorists (“non-state armed groups”).95 The appeal is obvious: the [international humanitarian law] applicable in armed conflict arguably has more permissive rules for killing than does human rights law or a State’s domestic law, and generally provides immunity to State armed forces.96 Because the law of armed conflict has fewer due process safeguards, States also see a benefit to avoiding compliance with the more onerous requirements for capture, arrest, detention or extradition of an alleged terrorist in another State. IHL is not, in fact, more permissive than human rights law because of the strict IHL requirement that lethal force be necessary. But labeling a situation as an armed conflict might also serve to expand executive power both as a matter of domestic law and in terms of public support.

48. Although the appeal of an armed conflict paradigm to address terrorism is obvious, so too is the significant potential for abuse. Internal unrest as a result of insurgency or other violence by non-state armed groups, and even terrorism, are common in many parts of the world. If States unilaterally extend the law of armed conflict to situations that are essentially matters of law enforcement that must, under international law, be dealt with under the framework of human rights, they are not only effectively declaring war against a particular group, but eviscerating key and necessary distinctions between international law frameworks that restricts States’ ability to kill arbitrarily. [my emphasis]

Israel is currently asserting its commando team is immune from laws about murder and piracy. And the reference to the appeal of an armed conflict as a rationale to expand executive power really sums up the last nine years of American history.

Where the US and Israeli preference to treat counterterrorism as armed conflict really goes astray of the law is in the definition of whom they may target.

58. In international armed conflict, combatants may be targeted at any time and any place (subject to the other requirements of IHL).108 Under the IHL applicable to noninternational armed conflict, the rules are less clear. In non-international armed conflict, there is no such thing as a “combatant.”109 Instead – as in international armed conflict – States are permitted to directly attack only civilians who “directly participate in hostilities” (DPH).110 Because there is no commonly accepted definition of DPH, it has been left open to States’ own interpretation – which States have preferred not to make public – to determine what constitutes DPH.

59. There are three key controversies over DPH. First, there is dispute over the kind of conduct that constitutes “direct participation” and makes an individual subject to attack. Second, there is disagreement over the extent to which “membership” in an organized armed group may be used as a factor in determining whether a person is directly participating in hostilities. Third, there is controversy over how long direct participation lasts.

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Obama and JSOC Targeting People Not Included under AUMF

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The WaPo has an important story today–apparently following up on the NYT’s JUnc-WTF story from last week–describing the way Obama has expanded the scope of the use of special operations forces. Some key details are:

  • Obama has deployed JSOC in 15 new countries since taking over as President, for a total of 75
  • JSOC has about 4,000 people in countries besides Iraq and Afghanistan
  • JSOC has 100 people in Pakistan but would like to triple that
  • Obama has changed the reporting structure in some good ways (reading Ambassadors into operations and reporting through regional commands) but has apparently increased direct conversations with JSOC (though remember that JSOC was supposed to be doing operations reporting directly to Cheney before)
  • JSOC is whining about needing civilian approval for targeting people in countries against which we are not at war, like Somalia and Yemen

But the most disturbing part of the story is something that parallels something in the Gitmo Review Task Force Report: Obama is claiming the right to target people not included under the Authorization to Use Military Force passed in response to 9/11.

Former Bush officials, still smarting from accusations that their administration overextended the president’s authority to conduct lethal activities around the world at will, have asked similar questions. “While they seem to be expanding their operations both in terms of extraterritoriality and aggressiveness, they are contracting the legal authority upon which those expanding actions are based,” said John B. Bellinger III, a senior legal adviser in both of Bush’s administrations.

The Obama administration has rejected the constitutional executive authority claimed by Bush and has based its lethal operations on the authority Congress gave the president in 2001 to use “all necessary and appropriate force against those nations, organizations, or persons” he determines “planned, authorized, committed, or aided” the Sept. 11 attacks.

Many of those currently being targeted, Bellinger said, “particularly in places outside Afghanistan,” had nothing to do with the 2001 attacks.

If Obama is purportedly relying on the AUMF to authorize JSOC missions, then his authority should be limited to those who “planned, authorized, committed, or aided” the 9/11 attacks. But, at least according to John Bellinger, these operations are targeting people who had nothing to do with the attacks–presumably, people whose ties to al Qaeda are so attenuated that they couldn’t be claimed to have had a role in 9/11.

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