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

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.

But then there’s Clapper’s answer about how to improve information sharing in the Intelligence Community. The answer: to give ODNI the same secrecy provisions that CIA and NSA have.

In addition, if confirmed, I will also look to Congress if legislative changes are needed to facilitate information sharing. For example, information sharing and the IC’s ability to analyze intelligence information would be enhanced if Congress enacts legislation to give the ODNI the same operational files exemption granted to CIA, NGA, DIA, and NSA.

As an example why this is important, the operational files exception is what CIA has used to explain why it didn’t reveal the existence of the torture tapes in response to legal inquiries on records on torture. And further note, this is the single, solitary change that Clapper said he’d like to make legislatively, even while he suggested that legislative fixes weren’t needed for other broken aspects of the IC.

And that extends to putting our satellite and telecom surveillance under civilian control. When Kit Bond asked Clapper why he had flip-flopped on his earlier stated desire to move NGA and NSA under civilian control, one of his stated newfound concerns with doing so pertained to civil liberties.

In your meeting with me last week, you said that while you once believed that the DNI should have departmental authority over military intelligence agencies like NGA, you no longer believed that would be wise. Please take me through the evolution of your thinking on this important issue.

• What led you to believe it would be a good idea and what changed your mind?

I don’t recall saying that the DNI should have “departmental authority” over military intelligence agencies like NGA, however when the IRTPA was being debated in the Congress, Gen Hayden (then serving as Director of NSA) and I (then serving as Director of NGA) suggested that another paradigm should be considered: moving the agencies who’s first letter is “N” (as in national) out of the Department of Defense, and under the operational control of a DNI, might have merit. Putatively, although not expressed that way at the time, this would mean a “Department of Intelligence.” I have since come to believe that this arrangement would not be workable, since it could pose profound civil liberties challenges, and the “donor” Department (DOD) would, over time, regenerate the capabilities lost to the “Department of Intelligence,” since the support rendered by these agencies is so integral to warfighting.

Now, to be fair, Clapper may well be right about DOD’s interest in recreating these entities (though Congress would have to approve their budgets!). But it seems to me moving NSA and NGA might be better for civil liberties, as it would make it harder for some clown like John Yoo to claim that the military in hot pursuit could wiretap apartment buildings as he did in one of his opinions.

But it’s the last two issues might be of greatest concern.

First, as Kit Bond noted, Clapper somehow managed to overlook the timeline stipulated by transparency questions and neglected to list his 2006-7 affiliation with a number of intelligence contractors, including GEOEYE, 3001, Inc., Sierra-Nevada Corp, CSIS, US Geospatial Intelligenc Foundation, and DFI International (the last as COO). For a discussion of why this is important, see Tim Shorrock’s post on it.

Then, finally, there’s Clapper’s answers about the Iraq NIE:

During your confirmation hearing you noted that you agreed with the findings of the Committee’s Iraq report. that you were very familiar with the flaws in the NIE. having had your “fingerprints on it” as a member of the National Intelligence Board, and that you could “attest. since [you were] there, [the failure] was not because of politicization or any political pressure. It was because of ineptness.”

• Did you see any evidence during this period that the Intelligence Community provided intelligence assessments of Iraq to the Administration that differed, in substance, from those provided to Congress and the public?

No, from my vantage as Director of (then) NIMA, I did not see any evidence that the Intelligence Community provided intelligence assessments on Iraq to the Administration that differed, in substance, from those provided to Congress and the public.

• Did you ever hear a member of the Administration say something publicly about the intelligence on Iraq that you believed at the time was not supported by the intelligence?

I wondered about the certitude with which some in the administration spoke about the presence of WMD in Iraq, but I had no basis from my position as Director of NIMA to question those statements.

Of course, Congress never saw the full NIE, so by definition, the Administration got substantially different information–like some key footnotes–than most of Congress got.

Now, I’m at a bit of a loss because my books are all packed up, so I won’t find this detail directly. cBut implicit in Clapper’s answer is a claim that the NGA never gave the Administration information on–for example–what it was seeing in the Tora Bora area that didn’t get passed onto Congress. Clapper is claiming that all the wackadoodle satellite reports of WMD that Scooter Libby made the Iraq Survey Group chase down got shared with Congress.

I don’t buy it.

Then there’s the view Clapper did endorse: the claim that Saddam had snuck all his WMD out of Iraq before we got to it–something that, as head of NGA, he presumably should have had information to rebut.

Frankly, it pains me to see Kit Bond taking the lead on raising questions about Clapper’s nomination here while Dems help the Obama Administration rush him through before the August break.

This is a guy who appears to disagree with everything the Senate Intelligence Committee purports to believe about the DNI position. And yet even while they’re not getting cooperation on making changes to the position itself, they’re giving the Administration everything it’s asking for about its nominee.

  1. MadDog says:

    The ODNI needs an “operational files exemption”? Just wtf is the DNI doing that is “operational”?

    Yes, they own stuff like the National Counterterrorism Center (NCTC), but as far as we serfs know, the ODNI isn’t about conducting “operations”.

    • crossword says:

      The ODNI needs an “operational files exemption”?

      as far as we serfs know, the ODNI isn’t about conducting “operations”.

      They’re not — yet. But with Clapper in charge, they will be.

  2. MadDog says:

    And wtf does this mean from page 9 of Clapper’s response:

    …In addition, I understand that in direct response to the White House-led review, the SSCI assessment and the McLaughlin report, there are efforts underway to update, harmonize, and simplify U.S. Person rules, including those that apply to FISA collection programs, to make sure agencies are aware of and maximizing their existing authorities…

    (My Bold)

    Reads to me as if efforts are underway to narrow the definition of “U.S. Persons” in order to widen the driftnet of domestic FISA collection.

    I wonder if that narrowing of “U.S. Persons” would include only those folks who can prove their citizenship with an actual original paper copy of their birth certificate?

    • MadDog says:

      Just my swag here, but my curiousity gets humming about Clapper’s description of:

      …efforts underway to update, harmonize, and simplify U.S. Person rules, including those that apply to FISA collection programs…

      Here’s the legal definition of said U.S Person rules:

      (i) “United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.

      There’s not much room for “simplification” here.

      Also, what’s the motivation here? Can it be that Mikey Hayden’s vaunted driftnet wiretapping just isn’t producing much?

      Can it be that the powers-that-be are pushing to make the definition of “U.S. Person rules” only apply to actual folks with US citizenship, born here of actual folks with US citizenship, who themselves were born here of actual folks with US citizenship going back to the Mayflower?

      In which case folks with “acquired” US citizenship like Times Square bomber, Faisal Shahzad, would no longer be exempt from the domestic driftnet wiretapping?

      And you can bet that an “alien lawfully admitted for permanent residence” would definitely no longer meet the requirements of the “U.S. Person rules”.

      Again, it sounds like the government ain’t finding the fish they’d hoped for in that domestic driftnet of wiretapping, and that they want to make the exemption a whole lot smaller.

  3. MadDog says:

    Another “telling” statement in Clapper’s response that actually comes from Senator Kit Bond (page 15 of the 24 page PDF):

    …Why is there a need for a HIG overseas if the USG is not going to take possession of terrorists overseas outside of Afghanistan?…

    What this really means is that outside of Afghanistan (and I suppose still Iraq), the US government is and will subcontract out the detention, and likely the “interrogations” of detainees to 3rd parties.

    Folks like Jordan, Egypt, Saudi Arabia, Pakistan, and perhaps even to 3rd party contractors like Blackwater operating its own “offshore” sites.

    This provides a partial explanation for CIA Director Panetta’s April 2009 “closure” of the CIA’s own detention facilities.

    Shorter version? We’ve outsourced it.

      • PJEvans says:

        The only torches easily available in this area are the luau torches that use something like Sterno. They’re torches, but they aren’t really impressive, compared to my pitchfork (which is wearing about ten yards of read-white-and-blue striped ribbon, the better to tie up politicians who can’t run fast enough).

        • Mason says:

          The only torches easily available in this area are the luau torches that use something like Sterno. They’re torches, but they aren’t really impressive, compared to my pitchfork (which is wearing about ten yards of read-white-and-blue striped ribbon, the better to tie up politicians who can’t run fast enough).

          I daresay that I believe I just felt a thrill twitter up my leg.

  4. MadDog says:

    And EW, I see your tweet about that WaPo article and I expect you’ll have a few things to say about here at the Wheelhouse.

    For those wanting to catch EW’s drift, check out:

    White House proposal would ease FBI access to records of Internet activity

    The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual’s Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.

    The administration wants to add just four words — “electronic communication transactional records” — to a list of items that the law says the FBI may demand without a judge’s approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user’s browser history. It does not include, as the lawyers hasten to point out, the “content” of e-mail or other Internet communication…

    • MadDog says:

      The fact that the government via non-court approved NSLs would get an ISP’s “capture” of a user’s browser history is the big one to me.

      • klynn says:

        Imagine the browser history of any one of us doing research on any given subject covered here at the Wheelhouse.

        And Mason @ 21:

        A pitchfork without a torch is like peanut butter without jelly.

        That should be on a t-shirt!

    • MadDog says:

      And underlying all of this is the Obama Administration’s acceptance and furtherance of the Bush/Cheney regime’s Totalitarian Information Awareness philosophy:

      Namely, if you haven’t or aren’t committing a crime, you have nothing to worry about the government’s warrantless total surveillance of all your activities.

          • bmaz says:

            Interesting that if the government wanted to trap a trace someone’s phone, they would need authorization, but if a person used only internet telephony, I guess they would, under this new Obama creation, not. Basically a person’s whole life in a digital world can be trapped and traced and then everybody they have ever contacted or internet sites they have interacted with can be spoked and done the same with.

            Not to mention, of course, the long and sordid history of unrepentant NSL abuse by the FBI.

            • bmaz says:

              Oh, and the fact that the FBI agents and employees apparently cannot even pass a basic open book test on surveillance authority in investigations without CHEATING:

              Senators grilled FBI Director Robert Mueller Wednesday about allegations of widespread cheating on a test given to all bureau agents, amid reports that the Justice Department Inspector General has opened a probe.

              Mueller told members of the Senate Judiciary Committee that he is confident in the abilities of his agents. The Inspector General’s office is investigating whether some agents cheated on an exam about the FBI’s guidelines for conducting investigations.
              The Associated Press reported [1] late Tuesday that the Inspector General’s office is looking into the test-taking practices of agents in offices across the country — the first indication that the probe has widened beyond the Washington D.C. office.

              Under questioning Wednesday, Mueller said he said he does not know exactly how many agents may have cheated. According to the AP, hundreds of agents are under investigation.

              • Mason says:

                Under questioning Wednesday, Mueller said he said he does not know exactly how many agents may have cheated. According to the AP, hundreds of agents are under investigation.

                Damn! Now I’m going to have to waterboard him to get the truth.

                I hate it when the FBI makes me do that!

      • ghostof911 says:

        It’s not about what they’re capturing in the surveillance. It’s all about making everyone aware that Big Brother is watching. The most potent weapon is the ability to generate fear.

    • PJEvans says:

      it does not include, as the lawyers hasten to point out, the “content” of e-mail or other Internet communication…

      Yeah, right.
      We’ve heard that one before.

  5. ghostof911 says:

    From Scahill

    “training” is used as a cover for unilateral, direct action. “It’s often done under the auspices of training so that they can go anywhere. It’s brilliant. It is essentially what we did in the 60s,” says a special forces source. “Remember the ‘training mission’ in Vietnam?..”

    O’Loser must be getting bored fighting warz started by his predecessor. He’s fishing for his own Vietnam so he can stamp his name on it.

  6. Mason says:

    What’s up with these dudes and their lame names?

    Crapper and Betray us

    Up in a tree

    Doing what comes naturally.

    First comes COIN,

    But it ain’t free,

    And here comes a Crapper

    caught with his zapper.

    Back off! I never said I was a fucking poet.

  7. Mason says:

    Why can’t Democrats rein in the Intelligence Industrial Complex?

    Because it’s IIC-ky and BP used up all the Corexit.

  8. bobschacht says:

    This is all so depressing. But hey, maybe there’s a silver lining: If Kit Bond is inclined to vote against, can my AZ senators McCain and Kyl be far behind? Maybe I oughta give them a call…

    Bob in AZ

  9. bobschacht says:

    Incidently, I’m still getting the following error when trying to “Spotlight” any diaries here at Emptywheel

    Internal Server Error

    The server encountered an internal error or misconfiguration and was unable to complete your request.

    Please contact the server administrator, [email protected] and inform them of the time the error occurred, and anything you might have done that may have caused the error.

    More information about this error may be available in the server error log.

    This has been going on for several days now.

    Bob in AZ

  10. Gitcheegumee says:

    ” In a time of universal deceit, telling the truth is a revolutionary act. ”

    George Orwell …