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“Did Anyone Know a Fruit Vendor in Tunisia Was Going to Light Himself on Fire?”

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That’s the question NSC spokesperson Tommy Vietor used yesterday to deflect Senate Intelligence Committee concerns that the Administration was taken by surprise by the events in Egypt.

Did anyone in the world know in advance that a fruit vendor in Tunisia was going to light himself on fire and start a revolution? No. But for decades, the intelligence community and diplomats have been reporting on unrest in the region that was a result of economic, demographic and political conditions.

That’s pretty much the answer Stephanie O’Sullivan gave to the committee as they grilled her yesterday (though without the snide reference to Mohamed Bouazizi, the Tunisian whose self-immolation sparked the uprising there).

“We warned of instability,” said Stephanie O’Sullivan, who has been nominated to become the nation’s No. 2 intelligence official. The hearing was on her nomination to be principal deputy director of the Office of Director of National Intelligence. But, she added, “we didn’t know what the triggering mechanism would be.”

It’s also what Paul Pillar told Spencer about warnings of the Egyptian uprising.

“The ingredients of upheaval were there for a long time,” says Paul Pillar, who was the intelligence community’s top Mideast analyst from 2000 to 2005, “but it was impossible to predict in advance what particular catalyzing events would set stuff off.”

But that response doesn’t address three issues.

First, there’s DiFi’s complaint that the intelligence community was not monitoring open source resources to track the Egyptian opposition.

Feinstein set a skeptical tone at the opening of the hearing, saying Obama and other policymakers deserved timely intelligence on major world events. Referring to Egypt, she said, “I have doubts whether the intelligence community lived up to its obligations in this area.”

After the hearing, Feinstein said she was particularly concerned that the CIA and other agencies had ignored open-source intelligence on the protests, a reference to posts on Facebook and other publicly accessible Web sites used by organizers of the protests against the Mubarak government.

Speaking more broadly about intelligence on turmoil in the Middle East, Feinstein said, “I’ve looked at some intelligence in this area.” She described it as “lacking . . . on collection.”

Our intelligence community makes a great deal of effort to track the public internet communications of Islamic extremists. But DiFi suggests they’re not doing the same to track potential sources of instability around the world. In my next post, I’ll show that she may have a point.

In addition, the response that the intelligence community can’t predict when a fruit vendor will self-immolate and with it light up the whole Middle East ignores a point that Pillar admitted.

At the same time, the CIA is really, really close to its Egyptian counterparts. It relied on Egypt’s spymaster, now Mubarak’s vice president, to carry out a torture program against terrorist suspects. But Pillar denies that closeness led the CIA to rely on rosy pictures of a stable country provided by Egypt’s spies.“They take with grain of salt what [Egyptian spies] have to say,” Pillar says. “Anybody in the State Department or intelligence community following a country like Egypt is highly conscious of that as an occupational hazard. That doesn’t mean necessarily that they have great sources inside an opposition movement, but they’re aware of this as a potential shortcoming.” [my emphasis]

Pillar admits that we didn’t necessarily have great sources within the opposition movement. And he may be suggesting that that is because of our particularly close ties to Egypt’s intelligence services and thugs like Omar Suleiman. Particularly if DiFi’s complaint about not tracking social media is correct, that’s sort of going to make it hard to predict a revolution.

Finally (and this is a point as salient for the complaining Senators as for the intelligence community), what if we did know people were talking about a revolution? What would we have done?

Given the Administration’s caution about dispensing of its ally Mubarak (something I’m not terribly surprised about), what do the Senators really think we would have done, as a country, had we thought Mubarak’s rule was unstable? Egypt has been such a cornerstone of our foreign policy for so long, I highly doubt it would have changed our policy of gently trying to nudge Mubarak to reform without trying to offend him.

The $258 of Intelligence You Bought This Year

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Congratulations to Steven Aftergood, whose persistent efforts to get the government to reveal the topline intelligence budget have finally paid off. Yesterday, the government officially announced that it spent $80.1 billion on intelligence in the last year, up 7% in just the last year and 100% since 9/11.

The government announced Thursday that it had spent $80.1 billion on intelligence activities over the past 12 months, disclosing for the first time not only the amount spent by civilian intelligence agencies but also by the military.

The so-called National Intelligence Program, run by the CIA and other agencies that report to the Director of National Intelligence, cost $53.1 billion in fiscal 2010, which ended Sept. 30, while the Military Intelligence Program cost an additional $27 billion.

[snip]

The disclosure Thursday that intelligence spending had risen to $80.1 billion, an increase of nearly 7 percent over the year before and a record high, led to immediate calls for fiscal restraint on Capitol Hill.

That’s $258 a year for every man, woman, and child in this country. $21 a month per person, or $86 for a family of four.

But don’t worry; I’m sure all the people losing their homes and relying on food stamps can afford that much intelligence. Think of it like a second phone bill–that’s undoubtedly where at least a chunk of that money is going.

In response to this admission, both DiFi and Silvestre Reyes issued statements promising improved fiscal oversight of the intelligence community. That’s great! They can have the phone companies fight over the right to get paid handsomely to spy on us!

The Compromise Intelligence Authorization

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As DDay noted, it looks like we’ll finally have an intelligence authorization bill. The bill is a partial win for Speaker Pelosi, as it makes full briefing to the Intelligence Committees within six months of the start of a program the default (though the Administration can still avoid doing so if it provides written rationale). And it includes at least a nod to Pelosi’s demand that GAO be giving some authority to review intelligence programs. Steven Aftergood calls the GAO access “a foothold.”

The Act (in section 348) requires the Director of National Intelligence to prepare a directive on GAO access to intelligence community information — thereby setting the stage for a stable new role for the GAO in intelligence agency audits and reviews.In a letter to Congress (reprinted in the record of the floor debate) withdrawing the threat of a veto, ODNI General Counsel Robert S. Litt stressed that the new directive would not imply any change in existing law or GAO authority. He added that the new directive would also conform with “relevant opinions of the Office of Legal Counsel.” However, the only OLC opinion on the subject is from 1988, and it argued that GAO access to intelligence information is “precluded” by law. It hardly seems likely that the new directive would affirm that view.

Instead, the required directive should be seen as analogous to the recently updated Pentagon directive that permitted GAO access to highly classified special access programs,

It remains to be seen whether this compromise will give Congress enough new oversight powers to prevent the abuses that happened under Bush (and heck–I assume the Gang of Four, if not the Gang of Eight–has signed off on assassinating US citizens solely on the President’s say so, so it’s not clear that oversight will be any use in protecting the Constitution). But Jeff Stein reports both Pelosi and DiFi declaring victory, while the White House and DOD remain silent. Here’s Pelosi:

“In passing the Intelligence Authorization Act last night, the Senate upheld our first responsibility – to ensure the security of the American people – while addressing two key objectives,” Pelosi said in a statement Tuesday.

“It expands and improves the congressional notification process for covert action and provides the framework for GAO access to intelligence community information so that the GAO can conduct investigations, audits, and evaluations as requested by Congress,” Pelosi said.

Again, I remain skeptical, but at least this is better than nothing.

Think of it this way. Under these rules, the Bush White House would have had to tell the entire Intelligence Committees they were systematically torturing prisoners by February 1, 2003 (or at least admit in writing they hadn’t and wouldn’t inform the committees, rather than altering documents after the fact to pretend they had). Technically, they would have to have informed Congress of the September 17, 2001 finding dubiously used to authorize the torture program by March 17, 2002. As it happened, they apparently didn’t brief any Democrats that they were torturing prisoners until February 5, 2003, at which point the one they did brief (Jane Harman) objected in writing (and asked whether the President had signed off on the policy, which presumably meant she had never been briefed on the actual finding). We know Bob Graham had been proposing oversight of the interrogation program by that point, backed by a majority of the committee, even though he had no clue they were torturing (though Tony Blair apparently did). So it’s possible Congress would have at least demanded more information sooner about the torture under this system.

That may not have been enough to forestall Dick Cheney’s torture program. But it might have subjected it to at least a little more review.

At which point–as presumably has happened on Presidential hit lists–the blame for our egregious abuse of the Constitution would be more widely shared.

Congratulations, Intelligence Committees: you now share in the moral responsibility to protect the Constitution. Please take that responsibility seriously.

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?

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?

James Clapper Hedges on Providing Ongoing Updates on Special Ops Activities (and Other Disconcerting Answers)

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As Josh Rogin and Marc Ambinder note, James Clapper is scheduled to get a vote tomorrow in the Senate Intelligence Committee on his nomination to be Director of National Intelligence. Ambinder reports that Kit Bond is most dissatisfied with Clapper at this point, the rest of the committee really ought to join in Bond’s dissatisfaction given his answers to their post-hearing questions. Take this response to Russ Feingold:

Success in the area of counterterrorism requires that the Intelligence Community and the Department of Defense coordinate their activities, and that congressional oversight not be fragmented. One example is Section 1208 of U.S.c. Title 10, which authorizes assistance to foreign forces, irregular forces, groups, or individuals supporting U.S. counterterrorism military operations. The Senate Armed Services Committee has expressed concern that U.S. Special Operations Command may be leveraging this authority for long-term engagement with partner nations, rather than exclusively to support operations, particularly in countries other than Iraq and Afghanistan. Information about the use of Section 1208 is therefore critical if the Intelligence Committee is to conduct oversight of how the U.S. government as a whole is fighting terrorism around the world.

• Will you ensure that this information is provided to the Committee?

Section 1208 of the FY 2005 National Defense Authorization Act, PL 108-375, requires the Secretary of Defense to submit an annual report “to the congressional defense committees on support provided to foreign forces, irregular forces, groups, or individuals engaged in supporting or facilitating ongoing military operations by United States special operations forces to combat terrorism.”

If confirmed as the DNI I would not view the provision of DoD clandestine military operational information to the SSCI as being within my authority or responsibility; however, I would fully support an arrangement agreed to by the affected oversight committees for the submission of information to Congress concerning this matter. [my emphasis]

Feingold’s question pertains to this issue.

• Section 1208 (Support to Foreign Forces)

Section 1208 of the FY 2005 NDAA authorized DOD to reimburse foreign forces, groups, or individuals supporting or facilitating ongoing counter-terrorism military operations by U.S. special operations forces (SOF). The FY 2009 NDAA authorized $35 million a year for this authority through FY 2013. The Obama Administration did not request a change to Section 1208.

The HASC bill increases the annual budgetary authority to $50 million in order to limit funding restraints during the planning of Section 1208-funded operations. The HASC was generally supportive of Section 1208 programs and was pleased with more effective reporting of Section 1208-related activities. The HASC voiced concern, however, that Section 1208 should not to become a “train and equip” program managed by Special Operations Command (SOCOM). The HASC also expressed uneasiness over the use of private contractors to carry out Section 1208 activities and thus required additional reporting requirements to track such contracting.

The SASC bill does not raise the Section 1208 funding level, and the committee expressed dissatisfaction with current reporting. SASC voiced concern that SOCOM may be using 1208 funds to leverage long-term engagement with partner nations rather than exclusively for supporting military operations by U.S. special operations forces to combat terrorism. The SASC asked SOCOM to review their Section 1208 execution to eliminate such leveraging. [my emphasis]

In other words, the House Armed Services Committee has expressed concern that DOD is using this Special Ops provision to train allies in military operations, and using contractors to do so. As Feingold notes, the Senate Armed Services Committee is concerned that in the guise of supporting distinct operations, DOD is engaging in long-term operations.

To me, this reads like DOD is using this provision to engage in war in countries against which we’re not at war: like Somalia and Yemen. This sounds like the authority DOD is using to engage in operations–including drug related ones–in 75 countries, as Jeremy Scahill has reported.

So Russ Feingold, presumably thinking of the way in which the Bush Administration started using Special Ops for covert actions partly to hide them from the intelligence committees, asks the retired general nominated to head the Intelligence Community whether he would share information with the intelligence committees about the activities. And Clapper responds, I’m not legally obligated to. But, if the Armed Services Committees agree, we can do some info sharing. Nothing, incidentally, about sharing the information in as timely fashion as the CIA would have to share information on less risky covert ops. Just a yearly report, I guess.

Now perhaps Clapper’s willingness to share information is all well and good and I shouldn’t worry.

Read more →

WaPo Top Secret Story: Why Not Nominate God to Be Director of National Intelligence?

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I trust you will all read Dana Priest and William Arkin’s story on the unwieldiness of our Intelligence Industrial Complex. It is good, insofar as it focuses needed attention on a huge problem.

But boy is it itself unwieldy. Today’s overview appears to want to be two stories: one on the problem with out-of-control contracting, and one on how that led to the failure to identify the Nidal Hasan and UndieBomber threats.

Moreover, what I find utterly shocking is that today’s 5315-word installment includes only this reference to the simmering battle over intelligence reform and the Director of National Intelligence position and tomorrow’s confirmation hearing for James Clapper!

“There’s only one entity in the entire universe that has visibility on all SAPs – that’s God,” said James R. Clapper, undersecretary of defense for intelligence and the Obama administration’s nominee to be the next director of national intelligence. [my emphasis]

Remember, this hearing is tomorrow. The debate that has led up to it has covered whether or not we need a stronger DNI, whether or not GAO can audit intelligence programs, and whether more than 4 people should be briefed on major new intelligence programs.

Every single one of the issues that has led to tomorrow’s confirmation hearing is an issue that goes to the heart of the problems identified in the WaPo piece: the ongoing lack of real value-added analysis to make sense of all the intelligence collected, the opacity and potential waste and fraud of the entire IIC, and the turf battles that contribute to that waste.

So while I’m grateful that this story (and more importantly, the issues behind the story, since the content of today’s installment has largely already been reported by Tim Shorrock) is getting as much attention as it is, I’m aghast that the WaPo didn’t try to contextualize it by framing the issues in it in terms of Clapper’s nomination to be DNI.

The guy the Obama Administration nominated to be Director of National Intelligence seems glib about the utter lack of transparency and oversight in our intelligence world (his predecessor, Dennis Blair, claims in the story he was able to see it all). One after another high level security official are quoted in the story complaining about the lack of central focus on intelligence–precisely the issue that Clapper’s nomination won’t solve.

If Clapper’s nomination is approved tomorrow–and it sounds like DiFi has resigned herself to approving Clapper not because she thinks he’s adequate to the job but because the interim DNI is retiring shortly–it will represent success on Obama’s part at forestalling efforts to deal in substantive way with the problems identified in the story.

That’s the news in this WaPo story.

Elena Kagan on Illegal Wiretapping

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From Elena Kagan’s first comments about Cheney’s illegal wiretapping program yesterday (at 2:10), it sounds almost like she’d vote for rule of law in the al-Haramain case (though the case is probably in the gray area of cases on which she should recuse herself).

DiFi: And we have just had a case. It came–by a District Court Judge in California, as of March 31 of this year, the al-Haramain case, and Senator Specter and I have discussed this. It’s my understanding that what the judge did here was find the Terrorist Surveillance Program illegal, and essentially say that the plaintiff was entitled to damages from the government. So I guess the question might be whether that case goes up to the Supreme Court or not. But clearly the judge here dealt with something that was outside of the scope of law–which was the Terrorist Surveillance Program–and made a finding that it was, in fact, illegal.

Kagan: I believe that is what the judge said in that case and that case is still pending of course and might come before the Court. I think that the appropriate analysis to use with respect to that case or many others in this area would be the Youngstown analysis which makes very important what Congress has done. Where Congress authorizes the President, it’s one thing, where Congress has said nothing, it’s still another, where Congress has specifically barred the activity in question, you’ve got a much much higher bar for the President to jump over in order to find the action Constitutional.

After all, as DiFi with her historic concern for FISA being the “exclusive means” to conduct wiretapping seems intent to remind Kagan,  warrantless wiretapping was specifically barred.

But maybe not. Read more →

Does Kagan Think the 2001 Afghan AUMF Authorized Iraq?

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I’m going to assume that this was just a misstatement on Elena Kagan’s part, but it’s one that I hope she corrects before her confirmation hearings are done. In response to a question from DiFi, Kagan suggested that SCOTUS’ decision in the Hamdi case–which relied on the 2001 Authorization to Use Military Force passed after 9/11–applied to Iraq and Afghanistan.

DiFi: Could you elaborate on the scope of the President’s authority to detain individuals under the law of armed conflict?

Kagan: Senator Feinstein, the conversation that Senator Graham and I had–and I believe in that same hearing you asked a similar question–starts with the Hamdi case, where the Supreme Court said that the AUMF–the authorization for the use military force–which is the statute that applies to our conflict with Iraq and Afghanistan, that the AUMF includes detention authority, detention authority, and Hamdi said that the law of war typically grants detention authority in a wartime situation and interpreted the AUMF consistent with that law of war understanding.

Hamdi, of course, doesn’t even mention Iraq. And while Bush did conduct detention in Iraq in relation to that separate war, those detention operations fell under different guidelines even according to the radical people running the Bush Administration. More troubling, however, is the possibility that Kagan has internalized the false claims of many on the right that Iraq had anything at all to do with the 2001 AUMF, which authorized action only against those with ties to 9/11.

Again, I’m hoping this was just a misstatement, one which Kagan will correct before these hearings are done.

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.