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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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The Joint Unconventional Warfare Task Force Execute Order (AKA the JUnc WTF?)

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On September 30, 2009–according to a big new story from Mark Mazzetti–David Petraeus signed a directive approving the deployment of small special operations teams to go into friendly (Saudi Arabia and Yemen) and unfriendly (Iran and Somalia) countries to collect intelligence.

Interestingly, Mazzetti makes it clear that he’s not covering this because CIA’s pissed about it (which sometimes appears to be the case for his reporting).

While the C.I.A. and the Pentagon have often been at odds over expansion of clandestine military activity, most recently over intelligence gathering by Pentagon contractors in Pakistan and Afghanistan, there does not appear to have been a significant dispute over the September order.

In fact, it appears DOD issued the directive because CIA wouldn’t do whatever JSOC is now doing: the directive…

calls for clandestine activities that “cannot or will not be accomplished” by conventional military operations or “interagency activities,” a reference to American spy agencies.

One would hope that Congress gets pissed about this, though. Mazzetti quotes the document using the code–“prepare the environment”–that Cheney used for JSOC activities that he claimed did not need to be briefed to the Intelligence Committees, which (Mazzetti lays out implicitly) is being claimed here, too.

Unlike covert actions undertaken by the C.I.A., such clandestine activity does not require the president’s approval or regular reports to Congress, although Pentagon officials have said that any significant ventures are cleared through the National Security Council.

Read the whole thing.

In probably unrelated news, Esquire is previewing a story that Eric Massa claims Dick Cheney and Petraeus have met several times about the latter running for President–what Massa rather ludicrously (at least given the details thus far) calls “treason” or a “coup.”

But frankly, I believe Obama would embrace that “preparing the environment” all by himself if it meant further consolidation of power in the White House.

And in other probably unrelated news, Ray McGovern says one big reason Dennis Blair got fired is because he wasn’t amenable to a getting tough on Iran (Iran does feature prominently in Mazzetti’s story).

The Inexplicable Timing of Dennis Blair’s Ouster

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I’m thoroughly unsurprised by the news of Dennis Blair’s ouster. After all, it’s an impossible job that appears to serve one purpose: to provide a deck chair you can rearrange every two years as a scapegoat for our continuing inability to detect terrorists even with all the surveillance toys we’ve got.

(Actually, if you’re Michael McConnell, it serves a second, more personal, purpose: giving you means to privatize intelligence for the benefit of your once and future employers.)

But I’ve got a few questions after I read the following on Twitter:

Chuck Todd: MT @SavannahGuthrie POTUS asked for Blair’s resignation; Blair appealed to Chief of Staff to make a rebuttal — an offer that went nowhere.

Major Garrett: + Feinstein: “I look forward to working with the President as he identifies his nominee.” Feinstein Cmte rpt final straw for Blair

That is, if you believe the tweets of the White House Press Corps, Blair was ousted by Obama (thoroughly unsurprising news) in response to the SSCI report on the Undie Bomber.

Now, that someone would be canned in response to the SSCI report is also thoroughly unsurprising. It’s a damning report, showing we’ve made little progress since 9/11. Now, several people–like Marc Ambinder and Jeff Stein–seem to think National Counterterrorism Center Director Michael Leiter should be the one canned over this report (and that’s even before you consider that Leiter went on vacation right after Umar Farouk Abdulmutallab’s attempted attack). Whoever gets canned, though, I’m actually a bit pleased that someone will be held responsible for some pretty big failures.

So I understand all that.

It’s the timing I don’t understand. As Ambinder reported earlier this week, this report is not new. It’s just new to us. The White House has had this report for two months.

The SSCI gave its report to the White House and the intelligence agencies two months ago, and an official told me last night that the the IC had made progress implementing many of its regulations. The new budget contains more authority for the DNI to make technical decisions more quickly, which should help with the database issues. A DNI official said that Blair “accepted” blame and is making necessary changes.

If the White House were going to fire Blair in response to the report, why didn’t he get fired two months ago? Why let him start fixing thing (you know, shifting his deck chair), and then fire him?

Or did Rahm and Obama hold off on firing him until this report was declassified so he could serve as a very public scapegoat shortly after its release?

“Countering Violent Extremism”

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Sorry to let the threads grow so long of late–I’ve been out weeding again, if you know what I mean.

So partly to open up another thread to discuss the many ways in which our government kills Americans and/or journalists, and partly because we’ve been talking about whether the Hutaree militia organizing 40 miles from my house to the west, or whether the Imam gunned down by the FBI 30 miles in the other direction, were terrorists, I wanted to point to a Mark Hosenball post on the jargon replacing “GWOT”:

Not long after President Obama took office, he unofficially put an end to a favorite phrase of his predecessor: the “global war on terror.” True, George W. Bush used it so much that GWOT, as it became known in Washington, had largely lost its impact. But it got the job done—and Obama had yet to find a tough, pithy replacement. Until now.

In a speech today before a conference on post-9/11 intelligence-reform efforts, Director of National Intelligence Dennis Blair didn’t once utter the words “global war on terror.” But at least twice he talked about the administration’s efforts at “countering violent extremism.”

[snip]

CVE has been slowly catching on among the Obama crowd. Daniel Benjamin, the State Department’s top counterterrorism adviser, used it in testimony he gave to the Senate Armed Services Committee last month. As Benjamin explained it, “The primary goal of countering violent extremism is to stop those most at risk of radicalization from becoming terrorists. Its tools are noncoercive and include social programs, counter-ideology initiatives, and working with civil society to delegitimize the Al Qaeda narrative and, where possible, provide positive alternative narratives.” He added, “We are working hard to develop a variety of CVE programs.”

Hosenball also quotes John Brennan acknowledging that terrorism is a tactic.

It seems we’re replacing the word “terrorist,” then, with “extremist.” Preferable, in my mind, to be sure. But how will the term be used in the United States where we’ve got nutcases threatening members of Congress because they don’t like democratic votes? And will the fight against extremists merit special tactics in return, like the targeting of Americans with no due process?

The Prisoner Shellgame

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On Friday, I pointed out that Eric Holder and Dennis Blair used language in a letter on Gitmo’s detainees that suggests some subset of the detainees at Gitmo is not covered by Obama’s Executive Order requiring some resolution to their status.

In recent days, a couple of you have linked to articles about two other shell games the Obama Administration appears to be playing with its detainees. First, it appears that when we cede control over Iraqi prisons to Iraqis later this year, we will retain custody of about 100 detainees from Camp Cropper (where we’ve kept Iraqi High Value Detainees), purportedly at the request of the Iraqi government.

The U.S. military said it plans a July 15 handover of Camp Cropper, which has held high-level detainees such as Saddam Hussein and members of his regime on the outskirts of Baghdad. The roughly 2,900 detainees in Camp Cropper are currently the only Iraqi detainees in American custody, down from a wartime high of 90,000, the U.S. military said.At the Iraqi government’s request, the U.S. will continue to hold about 100 detainees who pose a high security risk, Quantock said, although he was not more specific about who would be kept in custody.

Meanwhile, someone (it’s not clear who) is proposing keeping international detainees at Bagram (which would basically mean Bagram would become a colder less accessible Gitmo). (h/t Jim White–and see this excellent Adam Serwer post on the Bagram debate from last November)

That the option of detaining suspects captured outside Afghanistan at Bagram is being contemplated reflects a recognition by the Obama administration that it has few other places to hold and interrogate foreign prisoners without giving them access to the U.S. court system, the officials said.

Without a location outside the United States for sending prisoners, the administration must resort to turning the suspects over to foreign governments, bringing them to the U.S. or even killing them.

In one case last year, U.S. special operations forces killed an Al Qaeda-linked suspect named Saleh Ali Saleh Nabhan in a helicopter attack in southern Somalia rather than trying to capture him, a U.S. official said. Officials had debated trying to take him alive but decided against doing so in part because of uncertainty over where to hold him, the official added.

U.S. officials find such options unappealing for handling suspects they want to question but lack the evidence to prosecute. For such suspects, a facility such as Bagram, north of Kabul, remains necessary, officials said, even as they acknowledged that having it in Afghanistan could complicate McCrystal’s mission.

Mind you, some of these prisoner shell games may be related. While it would seem that the US will have to hold Iraqis within Iraq, if there really are people at Gitmo who don’t qualify for the Task Force review, I can imagine that someone would like to keep them away from a prison in Illinois where their presence may become an issue.

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The “Detainees Subject to the Review”

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MadDog linked to the letter that Dennis Blair and Eric Holder sent the Senate describing the process by which 6 agencies and a 100 staffers meticulously decided the ultimate fate of Gitmo detainees–who could be released or imprisoned elsewhere, who could be tried, and (presumably) who had to be held indefinitely. It might be a reassuring letter for its portrayal of the deliberation and rationality applied to Gitmo detainees.

Except for this phrase, repeated twice: “all 240 detainees subject to the review.”

After carefully considering each case, the six agencies reached unanimous agreement on disposition determinations for all 240 detainees subject to the review.

[snip]

After all of the deliberations described above, the DNI-either personally for cases considered by Principals or by delegation to the ODNI official on the Review Panel-agreed with the other five agencies on disposition determinations for all 240 detainees subject to the review.

This process, apparently doesn’t apply to all detainees. Only the detainees “subject to the review.” Now perhaps they’re just making the distinction between Gitmo detainees and those in some black hole in Bagram or some other secret site. But it sure seems to be referring just to Gitmo detainees. In which case, there must be other Gitmo detainees, outside of the 240, who are not “subject to the review.”

Why? Who are they?

Executive Order 13492, which instituted this review, provides two potential hints. First, it provides this definition:

(c) “Individuals currently detained at Guantánamo” and “individuals covered by this order” mean individuals currently detained by the Department of Defense in facilities at the Guantánamo Bay Naval Base whom the Department of Defense has ever determined to be, or treated as, enemy combatants.

This would seem to leave out detainees held by CIA or contractors (maybe?). And it would seem to leave out those detainees whom DOD had simply never called nor treated as an enemy combatant. You know those family members Mary keeps asking about? They wouldn’t be enemy combatants, would they?

The EO also suggests DOD would have authority over any other detainees.

(a) Nothing in this order shall prejudice the authority of the Secretary of Defense to determine the disposition of any detainees not covered by this order.

So while this letter to the Senate sounds like a wonderful work of rational deliberation, it also seems to hint at some remaining Kafkaesque hole, whereby some people who have not been deemed enemy combatants remain in some arbitrary limbo not covered by this great display of rational deliberation.

Update: Hmmm is right: the EO lets the Secretary of Defense do what he will with all the other detainees (which I guess makes it especially useful if your Secretary of Defense is an old Chief Spook). I’ve fixed the post accordingly.

Obama’s Intelligence Leaders: For GAO Oversight Before They Were Against It

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Yesterday, we talked about how Rahm Emanuel opposed indefinite detention before he started working for it with Lindsey Graham.

Today, Steven Aftergood shows that Obama’s two intelligence heads, Leon Panetta and Dennis Blair, supported GAO oversight of intelligence activities before–presumably–they supported yesterday’s veto threat of GAO oversight.

As a Congressman in 1987, Leon Panetta actually introduced a measure to give GAO oversight authority over the CIA.

Sen. Daniel Akaka (D-HI), Rep. Anna Eshoo (D-CA) and others have repeatedly argued that the GAO could usefully supplement the intelligence oversight process without detracting anything.  “It is Congress’s responsibility to ensure that the IC carries out its critical functions effectively and consistent with congressional authorization. For too long, GAO’s expertise and ability to engage in constructive oversight of the IC have been underutilized,” Sen. Akaka said last year.

In 2008, Sen. Akaka chaired a Senate Homeland Security and Governmental Affairs subcommittee hearing (at which I testified [pdf]) on the feasibility and utility of GAO intelligence oversight.  “Congress must redouble its efforts–that is what we are trying to do–to ensure that U.S. intelligence activities are conducted efficiently, effectively, and with due respect for the civil rights and civil liberties of Americans, and I will work to see that it does,” Sen. Akaka said then.

Amazingly, an earlier version of the proposal for an expanded GAO role in intelligence oversight was introduced in 1987 by then-Rep. Leon Panetta, who is now the Director of the Central Intelligence Agency.

According to Rep. Panetta’s proposed “CIA Accountability Act of 1987″ (pdf) (H.R. 3603 in the 100th Congress), “Notwithstanding any other provision of law, the Comptroller General [who directs the GAO] shall audit the financial transactions and shall evaluate the programs and activities of the Central Intelligence Agency” either at his own initiative or at the request of the congressional intelligence committees.

And during his confirmation hearings, Blair was open to the possibility of GAO oversight as well.

At the January 22, 2009 confirmation hearing (pdf) of Adm. Dennis C. Blair to be Director of National Intelligence, Adm. Blair also acknowledged a role for GAO in intelligence oversight.

Sen. Ron Wyden asked him: “If the GAO is conducting a study at the direction of one of the intelligence committees using properly cleared staff, will you give them the access they need to do their work?”

Adm. Blair replied: “Senator, I’m aware that the direction of GAO studies and the terms of them are generally subject to talk between the two branches of government for a variety of reasons, and subject to having those discussions, ultimately I believe the GAO has a job to do and I will help them do that job.”

But, along with Obama’s opposition to investigating the Amerithrax investigation, he is now threatening to veto legislation that advocates just this kind of oversight.

Where Does Blackwater Play in the CIA-DNI Conflict?

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By now you’ve probably read Jeremy Scahill’s latest, which moves forward the story of Blackwater thugs being deployed with the JSOC in Pakistan. It confirms what Sy Hersh reported last year–that these covert actions were (and may still be) eluding Congressional oversight, that Dick Cheney directed their activities directly.

But I’d like to focus on the picture Scahill draws of the competing lines of authority in Pakistan and put it in the context of the recently-solved turf war between Leon Panetta and Dennis Blair. Scahill explains that, since both JSOC and CIA are doing drone strikes in Pakistan (and Blackwater is assisting both) but JSOC’s have remained secret until now, CIA often gets the blame for Blackwater’s mistakes.

The military intelligence source says that the drone strike that reportedly killed Pakistani Taliban leader Baitullah Mehsud, his wife and his bodyguards in Waziristan in August was a CIA strike, but that many others attributed in media reports to the CIA are actually JSOC strikes. “Some of these strikes are attributed to OGA [Other Government Agency, intelligence parlance for the CIA], but in reality it’s JSOC and their parallel program of UAVs [unmanned aerial vehicles] because they also have access to UAVs. So when you see some of these hits, especially the ones with high civilian casualties, those are almost always JSOC strikes.” The Pentagon has stated bluntly, “There are no US military strike operations being conducted in Pakistan.”

The military intelligence source also confirmed that Blackwater continues to work for the CIA on its drone bombing program in Pakistan, as previously reported in the New York Times, but added that Blackwater is working on JSOC’s drone bombings as well. “It’s Blackwater running the program for both CIA and JSOC,” said the source. When civilians are killed, “people go, ‘Oh, it’s the CIA doing crazy shit again unchecked.’ Well, at least 50 percent of the time, that’s JSOC [hitting] somebody they’ve identified through HUMINT [human intelligence] or they’ve culled the intelligence themselves or it’s been shared with them and they take that person out and that’s how it works.”

The military intelligence source says that the CIA operations are subject to Congressional oversight, unlike the parallel JSOC bombings.

I’m particularly focused on these competing lines of authorities in Pakistan because of one aspect to the turf war between Leon Panetta and Dennis Blair. Read more →

Dennis Blair’s Not Going to Touch Bush’s “Inaccuracies”

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Fresh off his fishing vacation break from retirement, MadDog found this declaration that Dennis Blair submitted in the al-Haramain case affirming that the documents correcting Bush’s inaccuracy are, themselves, classified.

There’s a really fascinating paragraph in that document:

I have reviewed the public and In Camera, Ex Parte Declarations of then-DNI Negroponte lodged in June 2006; the public and In Camera, Ex Parte Declarations of Lieutenant General Keith B. Alexander, Director of the National Security Agency, also lodged in June 2006; the public Declaration of John F. Hackett of the Office of Director of National Intelligence submitted in May 2006; and a copy of the classified "Sealed Document" that I understand was inadvertently disclosed to the plaintiffs and then lodged with the Court at the outset of this case. I have also reviewed the public and classified declarations submitted in February 2009 in connection with the declassification review ordered by the Court. This includes the public and classified declarations or John F. Hackett of the Office of Director of National Intelligence submitted on February 27, 2009; the public and classified declarations of Joseph J. Brand of the National Security Agency submitted on February 27, 2009; the classified Declaration of Anthony J. Coppolino, Department of Justice, Civil Division; and the classified Declaration of Andrea M. Gacki, Department of the Treasury, Office of Foreign Assets Control. [my emphasis]

To summarize, here’s what Blair said he had reviewed:

  • Public and classified Negroponte declarations, June 2006
  • Public and classified Alexander declaration, June 2006
  • Public Hackett declaration, May 2006
  • Sealed Document (the wiretap log)
  • Public and classified Hackett declarations, February 2009
  • Public and classified Brand declarations, February 2009
  • Classified Coppolino declaration, February 2009
  • Classified Gacki declaration, February 2009

See what’s missing?

Blair reviewed Hackett’s public declaration from May 12, 2006–but not his classified one. Nor did he review Coppolino’s or Gacki’s classified declarations from the same date. [Correction: I was working from memory–only Hackett submitted a declaration in May 2006. Update: I’m reviewing the language about this declaration from 2006, and they don’t say Hackett authored it (lots of the use of passive throughout), though it appears to come from ODNI, so Hackett.]

Back in March, I suggested that this classified declaration was the source of the "inaccuracy" that needed to be corrected before Judge Walker reviewed the record.

On May 12, 2006, in response to the judge’s skepticism that the document and a subsequent government filing needed to be handled ex parte, DOJ submitted superseding ex parte in camera material, and filed a motion opposing efforts to unseal these documents. 

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The Tortured Intra-Administration Squabble Continues

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The NYT has another story mapping the tensions within the White House over the torture issue (though this one, which cites Rahm directly, primarily portrays him–implausibly–as the neutral broker), this one focusing on the Holder-Panetta drama. The most interesting passage in the story, though, is this one.

At the time, Mr. Panetta felt besieged on several fronts. Mr. Blair, the intelligence director, was pushing to appoint the senior intelligence officials in each country overseas, a traditional prerogative of the C.I.A.

And other administration officials complained when the C.I.A. sent documents about the detention program to the Senate Intelligence Committee without giving the White House time to consider whether there were any executive privilege issues.

The interagency debate grew heated enough that Mr. Emanuel summoned Mr. Panetta, Mr. Blair and other officials to the White House to set down rules for what should be provided to Congress. Mr. Panetta complained that he was being chastised for excessive openness after being criticized for excessive secrecy when he pushed to withhold details from the interrogation memos.

The various issues raised by the Bush-era interrogation and detention policies have caused other tensions within the Obama team. Mr. Emanuel and others have concluded that the White House mishandled the planning for the closing of the detention center at Guantánamo Bay, Cuba.

Set aside the Blair-Panetta tension over Chiefs of Station here for the moment, which structurally in this passage is just a feint. While I’m sure the Blair-Panetta squabble over Chiefs of Station came up at the meeting, the passage focuses more closely on what CIA gave to SSCI–presumably for its extensive investigation into the torture program. This dispute was reported–as an intra-CIA squabble–back in May. And back then, Mark Hosenball reported that Panetta wanted to give full cables to SSCI, but instead compromised on giving them redacted cables.

Panetta’s instinct was to give Congress what it wanted. But undercover officers warned him that this would break with standard practice, and veteran spies worried that it would chill brainstorming between field agents and their controllers. Aiming to compromise, Panetta signaled to Congress that the CIA would turn over only redacted documents—and that it would take a long time to vet as many as 10 million pages of cable traffic.

Congressional investigators aren’t backing down, however, insisting on all of the material without deletions, including names of personnel who participated in harsh questioning, and holding subpoenas in reserve. 

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