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SSCI Unanimously Approves Nominee They Don’t Like

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As expected, SSCI just approved James Clapper’s nomination to be DNI. Surprisingly, though, there were no dissenters. Not Russ Feingold, with his worries about transparency on DOD covert ops. Not Tom Coburn, who was concerned about the timing of Clapper’s nomination (and who never met an obstructive tactic he didn’t like). Not even Kit Bond, who had a laundry list of concerns, from Clapper hiding his corporate ties, helping lie us into war, and flip-flopping on making NSA and NGA civilian agencies.

15-0.

A unanimous vote. For a guy everyone on the committee expressed concerns about.

Perhaps most pathetic of all is Kit Bond’s statement on his vote, admitting he knows he’s probably wrong about it.

General Clapper has served our nation honorably for 46 years and I admire him, he has assured me that he does not intend to be a hood ornament but judging from recent history my yea vote is really a triumph of hope over experience.

Congressional oversight at work.

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.

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So Why Can’t Democrats Rein in the Intelligence Industrial Complex?

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Jeff Stein had a piece on the response to the WaPo article on intelligence contracting the other day that started with this question:

House Speaker Nancy Pelosi has long wanted more members of Congress to know what’s going on at the CIA, but why doesn’t she announce a full-fledged investigation into the intelligence contractor mess, complete with televised hearings?

In it, he quotes from someone he describes as a Pelosi aide saying there’s little will to get this done.

Back to Pelosi: An aide, who like all the others speaks only on condition of anonymity, said she “certainly sees a need to step up oversight.” But after taking an informal sounding, he added, Pelosi found “there wasn’t any momentum for it.”

I asked her about that quote when we talked on Saturday. Her first response was to deny that such a quote could have come from one of her staffers, and to suggest it had come from the intelligence committee (which is what her office said in a follow-up to me as well).

Pelosi: You mean someone from the intelligence committee? Not my staff or my office.

When I asked whether there was any support for doing something about contracting, Pelosi said the WaPo article had raised awareness of the problem.

Wheeler: Is there the support in the House and the Senate to do something about all this contracting?

Pelosi: This has been very well read by members.

Wheeler: The Washington Post piece?

Pelosi: Yes. And it isn’t, it doesn’t come as a surprise to people. But it comes as almost a relief that finally some of this is out in the open.

Pelosi went on to describe all the problems with contracting: the cost, the lack of a single chain of accountability, the lack of information-sharing, and the turf battles. Then she basically said the Intelligence Committee would have to take a look–or, maybe, the Administration might assess whether it was making us safer.

Pelosi: I think there, my view is, I think the intelligence committees would have to take a really harsh look, and I would hope the Administration has to say, are the American people safer because of what’s happening in the intelligence community and I think it’s all about their security.

In response to her hope the Administration would do something about contracting, I noted that James Clapper–on his way to being confirmed as DNI–has been a big fan of contracting. Pelosi’s response was to direct responsibility back to the Intelligence Committee.

Wheeler: Although, again, Clapper has been involved in the contracting side and seems to be a pretty big fan of using contractors, I mean he kind of poo-pooed the whole article, so do you think Clapper, again, assuming he’s approved…

Pelosi: I don’t have to vote on him so I’m sort of, I’m always saying to the White House, why him? No, I just don’t know. I don’t want to go there. I don’t know enough to give you a precise view on that. But I do know that this really needs some careful consideration and some review and the intelligence committee is the appropriate place to do it.

Of course, the folks at the Intelligence Committee–at least according to Pelosi though not according to the attribution in his article–are the ones giving Jeff Stein anonymous quotes saying any real investigation of the contracting won’t happen.

For her part, Jan Schakowsky (remember, she was in the room for the interview) doubted the commitment (implicitly, I assume she means the Executive Branch, since they’re the ones still awarding Blackwater contracts) to reducing intelligence contracting. But she also doubts whether the committees (remember, she’s a member of HPSCI) know what these contractors are doing, and ultimately comes back to the question of whether they make us safer.

Schakowsky:While there has occasionally been lip service that we need to reduce the number of contractors, it’s been disappointing to me that in the last few months we’ve seen Blackwater get another big contract with the CIA and with the State Department. I would really question the commitment–any commitment–to reducing the number of contractors. Just even in the most sensitive missions.

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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.

GAO to Have Oversight of Most-Secret DOD Programs?

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Steven Aftergood reports that DOD signed a directive last week allowing for Government Accountability Office audits of Special Access Programs.

[A] Department of Defense Directive issued last week explicitly allows for GAO access to highly classified special access programs, including intelligence programs, under certain conditions.The newly revised DoD Directive 5205.07 (pdf) on special access programs (SAPs) states that:  “General [sic] Accountability Office (GAO) personnel shall be granted SAP access if:  a. The Director, DoD SAPCO [SAP Central Office], concurs after consultation with the chair and ranking minority member of a defense or intelligence committee [and] b. The GAO nominee has the appropriate security clearance level.”

The issue of GAO oversight is one of the two issues over which Nancy Pelosi is holding up the intelligence reform bill. In theory, GAO oversight would make it harder for the President to sneak through entire programs via appropriations and harder for corrupt members of Congress to do what Duke Cunningham did–put through appropriations that benefit themselves.

But I’m less sanguine than Aftergood that this directive–as welcome as it is–will do the trick.

To a significant extent, considering the dominance of defense intelligence agencies within the intelligence community, one could say that it now has been so recognized.  Only the details remain to be negotiated.

After all, this gives both key members of Congress (the leadership of either an intelligence or defense committee) and the President (because the GAO nominee would require a security clearance–remember that Bush postponed oversight of his illegal wiretap program by denying members of the Office of Professional Responsibility security clearances) veto power over GAO oversight on a program by program basis. Furthermore, it’s not clear that requiring the leadership of “a” committee to approve will do the trick, since many programs have been put through on defense appropriations without revealing them to the intelligence committees.

Finally, this follows a favorite Obama tactic: to negotiate changes Congress wants by implementing them in such a way that the Executive Branch retains the ability to reverse those changes. The whole point of GAO oversight would be to impose a check on the Executive. Whereas, done in bad faith, this could create nothing more than the illusion of a check on the Executive, one that the President might use to try to get Congress to wield on its efforts to impose real oversight.

So while this might bring more transparency and oversight to programs which all parties agree can withstand such oversight, I’m not sure it does much to the address the way in which separation of powers has been manipulated to conduct all sorts of mischief in taxpayers’ names.

DiFi Will Cave on Intelligence Reform

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

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

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

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

Wallace: This is General Clapper?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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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DOD’s Latest Black Site

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Fresh off of the ICRC’s confirmation that DOD has a black site in Bagram, Marc Ambinder has a long piece on it, describing it as run by part of the DIA, the Defense Counterintelligence and Human Intelligence Center, and downplaying, somewhat, what its use of Appendix M might mean. For example, he describes the Appendix to cover just short bouts of sleep deprivation and some sensory deprivation.

However, under secret authorization, the DIA interrogators use methods detailed in an appendix to the Field Manual, Appendix M, which spells out “restricted” interrogation techniques.

Under certain circumstances, interrogators can deprive prisoners of sleep (four hours at a time, for up to 30 days), to confuse their senses, and to keep them separate from the rest of the prison population. The Red Cross is now notified if the captives are kept at the facility for longer than two weeks.

When interrogators are using Appendix M measures, the Undersecretary of Defense for Intelligence, Gen.James Clapper (Ret.) is the man on the hook.

I think Ambinder has just not clearly stated the sleep deprivation restrictions (which require 4 hours of sleep in a 24-hour period, but which would therefore allow for 40 hour periods of consecutive sleep deprivation). And the limits in Appendix M make it clear that environmental manipulation (with noise, heat, cold, or even water) is still permitted, just not excessive amounts of it.

Care should be taken to protect the detainee from exposure (in accordance with all appropriate standards addressing excessive or inadequate environmental conditions) to—

− Excessive noise.

− Excessive dampness.

− Excessive or inadequate heat, light, or ventilation.

− Inadequate bedding and blankets.

− Interrogation activity leadership will periodically monitor the application of this technique.

Use of separation must not preclude the detainee getting four hours of continuous sleep every 24 hours.

Oversight should account for moving a detainee from one environment to another (thus a different location) or arrangements to modify the environment within the same location in accordance with the approved interrogation plan.

Which would be utterly consistent with BBC’s report that detainees there were subject to cold cells, constant light, and sleep deprivation.

There are a lot of interesting details in Marc’s piece. But perhaps the most amusing is the Orwellian non-denial denial from DOD’s spokesperson, Brian Whitman:

“DoD does operate some temporary screening detention facilities which are classified to preserve operational security; however, both the [Red Cross] and the host nation have knowledge of these facilities,” said Bryan Whitman, a Pentagon spokesperson. Read more →