Obama Rejects Senate Advice and Consent Over the Guy Who Data Mines Our Communications

The Administration has released a veto threat of the Intelligence Authorization that I’m going to deal with in reverse order.

The last objection argues that we can’t require the head of the NSA–the agency that gets to collect and data mine virtually all of America’s telecom metadata, as well as a lot of the actual content–face Senate confirmation because that person might not be confirmed.

Confirmation of Appointment of the Director of the National Security Agency:  The Administration strongly objects to section 421, which would add a requirement that the person nominated for the position of Director of the National Security Agency be confirmed by the Senate.  The Administration believes that if this provision were to become law, a critical national security position would likely remain unfilled for a significant period of time, adversely impacting the management and function of the National Security Agency.

Admittedly, Obama has had problems getting his nominees through Congress, partly because of Republican intransigence, partly because he hung out his most progressive nominees to dry, and partly because he hasn’t gotten nominees in place.

But the solution for that is not to give up! The solution is turn Republican intransigence into a political liability. And there’s no easier area to do that with than National Security. Indeed, the only National Security nominees I’m aware of who got held up (aside from Eric Holder until he promised not to prosecute torture) were TSA nominees who supported TSA workers’ right to organize; with them, Obama made no effort to accuse Republicans for exposing the country to danger over a political spat. And even James Clapper–about whom a number of Senators had concerns–got confirmed unanimously.

Then there’s the Administration’s objection to the requirement for records of diplomatic negotiations about detainees.

Submission of Information on Detainees Held at United States Naval Station, Guantanamo Bay, Cuba: The Administration strongly objects to sections 307 and 309, which would state that the DNI must provide the Intelligence Committees with each Department of State cable, memorandum, or report containing certain information relating to Guantanamo Bay detainees, as well as government-to-government assurances related to the transfer of those detainees. The Administration believes that such disclosure will have a significant adverse impact on the willingness of foreign partners, who often expressly request this information not be disseminated, to communicate frankly on these matters.

The cables and other documents at issue – originated and controlled by the Department of State, not the ODNI – contain deliberative commentary and sensitive diplomatic discussions and negotiations, including commitments made by foreign governments relating to the handling of transferred detainees. The Department of State has accordingly declined to produce these documents to Congress or to U.S. federal courts because of the need to protect diplomatic communications in conducing effective foreign relations. The Administration is concerned that these provisions may conflict with the Executive Branch’s constitutional authority to control the disclosure of information when necessary to preserve the Executive’s ability to perform its constitutional responsibilities.

There’s a deep, deep irony here. If this were Dick Cheney’s Administration, he would have added a “besides, Congress leaks so much we can’t let these sensitive materials circulate.” Except the Executive Branch is here refusing to share with the legislative branch the kinds of cables that were leaked to WikiLeaks, largely because of the incompetence of the Executive Branch.

You see, the Executive Branch may have “constitutional authority to control the disclosure of information,” but not, apparently, the basic competence to do so.

And so Congress can’t know whether the US is letting detainees of certain nationalities–like, say, Saudi Arabia–be released because of diplomatic sensitivities. Congress can’t know whether we release someone like David Hicks to help a political ally win an election. And Congress also can’t know what is probably the greater sensitivity, whether and how the Executive Branch, and allies like the Saudis, believe they’re flipping detainees to work as spies (often mistakenly).

I can see why such a requirement would elicit a veto threat.

But I think the real veto threat comes from stuff we’re not allowed to know about.

The Administration looks forward to reviewing the updated classified annex accompanying H.R. 1892.  In a letter from the Director of National Intelligence dated August 30, 2011, the Administration identified specific provisions in the Senate classified annex that also raised serious concerns.  If H.R. 1892 is presented to the President and includes the issues of concern described below and includes, but does not adequately address, the specific provisions of the Senate classified annex, the President’s senior advisors would recommend a veto.

The fact that much of this veto threat pertains to stuff that is substantive and sensitive enough to appear in the classified annex suggests it might be a real issue (and note that the items to which the Administration objects are in the Senate annex, not the House one, so they’re not something Michele Bachmann dreamt up to be cute). It is very rare that Administrations differ with Congress on such substantive issues (as opposed to, say, GAO review). Which suggests this may well be the really interesting source of the veto threat.

10 replies
  1. MadDog says:

    If the White House is threatening a veto over the classified Senate annex, that sounds like objections to something the Democratic majority on SCSI has put in place.

    Which gives me the impression that the White House is again refusing to rollback Bush/Cheney Unitary Executive policies.

  2. MadDog says:

    And btw, I’m guessing a White House veto threat of something even as innocuous as the Easter Egg Roll would have no credibility with Congress much less the suggestion of a Obama veto threat to a Repug signature issue of National Security.

    During a Presidential campaign season? Not even remotely credible and not gonna happen!

  3. rg says:

    First sentence, 2nd paragraph: Taking out all the stuff between the dashes-an appositive- leaves a sentence in need of editing. I don’t think anyone requires someones head.

  4. Mary says:

    It’s not like there will be no one running the store if there’s an advice and consent holdup – it’s just that you’ll have an acting head. That’s so horrible because …? We won’t get Elmer Fudd’s evil twin in uniform?

    Anyway – here’s a short article
    that basically posits that we now have reset to a “new normal.” “‘Ten years later, if we are still in this emergency mindset, then this is now who we are. This is the new normal,’ said Ms Susan Herman, president of the American Civil Liberties Union. ‘At some point if you don’t reverse that process you really have moved yourself into an Orwellian state.'”

    Who knew the O symbology in Barry’s campaign was based on Orwell, not Obama?

    Anyway, related, but only loosely, National Review uses the anniversary of 9/11 to plug Viet Dinh and John Ashcroft’s chapter in, ” Confronting Terror: 9/11 and the Future of American National Security.”

    At its best, it reaches the heights of sophistry; in general, it’s just half-assed crap.

    “Freedom never requires balancing. What it requires is enhancement. … Freedom must be secured. Security, then, is not a counterweight to freedom, but rather a means to ensure that freedom remains intact and contributes positively to the character of humanity.”

    WTH? Seriously? They get paid to write drivel like that? And that writing puts them on Newscorp Boards and wins Sup Ct cases for them? We have fallen, haven’t we? And these are the serious guys that have Obama’s ear. Sheez.

    I guess we all get the new Vista version of Freedom enhancment. *sigh* I am a bit stunned. Freedom needs to be secured, therefore security isn’t a counterweight to freedom.

    Let’s see, um, “My fishing boat needs to be secured, therefore security isn’t a counterweight to fishing boaterness” Yep – works pretty darn well. Let’s try, “all pets must be secured on a leash, therefore, security is not a counterweight to pets. Or leashes. Heck, we’ve just proven leashes should be used for security – for enhanced freedomization through leashed interrogation. *smacks head with hand*

    Dang – that’s why GITMO detainees have to be collared and leasehd and forced to perform dog tricks. It enhances the freedom experience.

    Or maybe we should go the other way. Freedom must be exercised. Therefor, exercise is not a counterweight to but rather a means to insure it remains intact. So drop and give me 20. For Freedom.

    From Orwell to Leashes for Liberty – I have to say I’m not sure I really care that much anymore whether there is advice and consent. Two corrupt institutions, Congress and the Executive Branch – the scariest thing just might be to end up with someone they can both agree upon.

    Let’s see, I think the Ashcroft/Dinh recipe goes something like: Advice and consent must be secured, therefor, security is not a counterweight to advice and consent …

  5. PeasantParty says:

    Marcy, all that secret stuff is suppose to have Congressional oversight. The way I understand it, it is not solely the committee on security matters, but the entire congress. Now, if you have time to look at the Patriot Act Renewal, sections 108 and 109 provide some of the rules to that law.

    I think Obama has been threatened. Either his own safety or the safety of his family. Don’t get me wrong, I’m not making an apology for his behavior because he has ruined what Bush and Cheney didn’t.

  6. PeasantParty says:


    Yeah. It goes back to Bush’s reasons for why 9/11 happened. “Cause they hate our freedoms”.

    The best way he saw to combat that was to just take our freedoms away!

  7. orionATL says:

    obama’s “veto notes” and

    cheney/bush’s “veto notes”

    are two different animals.

    bush/cheney’s say, “fuck you, this is how it is going to be.”

    obama’s say, “we want you guys to know we are sincerely trying to protect you. ”

    there’s a very BIG difference in attitude between the two admin’s notes.

  8. Bob Schacht says:

    I think we mostly forget the profound impact that the public attack on the Bush Presidency for “not connecting the dots” has changed the landscape. The Frontline special, Secret War, shows some very revealing sequences on this re: Ashcroft, Cofer Black, etc. and the shift from a criminal model of dealing with terrorists to a prevention model, and how 9/11 was interpreted by Bush to keep America safe, and everything else (including the Constitution, by implication) be damned.

    This is partly the result of how an insecure, second-rate character (Bush) reacts to a torrent of criticism out of fear and weak moral fiber. If at first you don’t succeed, cheat. Frontline shows that the impetus for “Do whatever you need to do,” came right from the top (Bush).

    Bob in AZ

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