Brennan and Obama on telecom immunity

In my interview with John Brennan, the former director of the National Counterterrorism Center and an unpaid adviser to the Obama campaign, Brennan stated that he favors granting immunity to those companies that were asked to participate in covert surveillance activities after 9/11.

This position differs from Obama's. He voted to strip an immunity provision out of a bill to amend the Foreign Intelligence Surveillance Act, which the Senate has passed. Obama did not vote on the final bill, which does contain an immunity provision.

Brennan deferred to the Obama campaign to articulate the Senator's current position on immunity. A spokesperson told me, "Senator Obama opposed the retroactive immunity provisions in the FISA bill, indicating that is more appropriately a decision for the Judiciary."

Labels: FISA, Law, NSA surveillance, Politics

Shane Harris | Friday, March 07, 2008

Interview: John Brennan

This week, I sat down with John Brennan, the current chairman of the Intelligence and National Security Alliance. Brennan, who was the first director of the National Counterterrorism Center, is now advising Sen. Barack Obama on intelligence and foreign policy. Brennan is also the president and chief executive officer of The Analysis Corporation, headquartered in McLean, Va., which does a great deal of work for the intelligence community.

In our interview, Brennan discussed restructuring the intelligence community, renewing FISA and debating counterterrorism on the campaign trail. Edited excerpts follow. You can also access the transcript at National Journal's Web site.

Q: Are we hearing a sufficient level of debate and distinction among the candidates of their various national security and counterterrorism positions?

Brennan: I think we are hearing some of that debate. And that debate is going to intensify as we get closer to the election.

There has been a fair amount of discussion, particularly on the terrorism front, about the different types of approaches. But I think it's mainly at the strategic level.

The intelligence business is a very complicated one, and I think a lot of the nuances may be lost on people. It's difficult in a presidential debate to really get into those intricacies.

I think there's a real issue related to some of the approaches that the next administration will have toward some of those countries, in particular, that still pose national security challenges to us -- for example, Iran, and whether or not there needs to be some initiative on the part of the United States to see whether there's some way to bridge the gap, or whether we should maintain a confrontational posture toward Iran.

Senator Obama and Senator [Hillary Rodham] Clinton have expressed an interest in trying to reach out, even to our adversaries. There are differences between those two as to when the president should get engaged.

Q: As a counterterrorism professional, is there one path that you see as more productive?

Brennan: I think that what we need in our quiver are many different types of arrows. We certainly need to have a military arrow. We need to have an intelligence one. But we need to have a diplomatic one. We need to have foreign aid. There needs to be a comprehensive set of approaches. A lot of these issues, including counterterrorism, cannot be solved with kinetic force.

I am a strong proponent of trying to focus more of our efforts on the upstream phenomenon of terrorism. I make the analogy to pollution. We learned that pollutants kill us when they get into the water we drink or the fish we eat or the air we breathe. But I think we also learned that we have to go upstream to identify and eliminate those sources of pollution. Terrorism is a tactic, and we have to be more focused upstream. Since 9/11, understandably we've focused downstream, on those terrorists who might be in our midst or trying to kill us, the operators. I think there needs to be much more attention paid to those upstream factors and conditions that spawn terrorists.

We also have to have a full discussion about the appropriate techniques we're going to use when individuals are captured or detained. But we have to be looking at what are those foreign policies, aid programs, international efforts that we need to be engaged in, that are going to try and stem the flow of those terrorists further upstream. I think a lot of our resources have been dedicated to that downstream phenomenon; I think the United States is a lot safer because we put in place the security filters to prevent terrorists from coming into our country. Now we have to look at the longer-term issues that are more difficult to deal with -- why individuals are succumbing to a lot of the recruitment efforts on the part of terrorist groups.

Q: What is the appropriate government agency to handle that?

Brennan: This is an issue the government is grappling with. A lot of the issues right now fall between the Department of State and the Department of Defense and Commerce and others. I think as we deal with these transnational issues, we need to bring to bear those capabilities that exist in different agencies. The National Counterterrorism Center is a place that is trying to deal with the issue in a comprehensive fashion. They have a group there, the Strategic Operational Planning Group, which is trying to bring to bear the full instruments of U.S. national power, from the diplomatic front to the intelligence front to law enforcement and defense. I think we need to have more of these integrated efforts, because no single department can in fact address the issues.

Q: People like you have talked about the need to do this for some time. Why haven't we seen this take hold as an ethos in government?

Brennan: There are a number of factors. One is, it's really, really hard. It addresses legacy institutions and architectures and ways of doing business. In Washington, it's difficult to rearrange how you do work. It would be overhauling, in many respects, the way we do government work. That requires legislation, a close interaction and coordination between the executive and legislative branches, and it also affects a lot of rice bowls.

Q: Then what will it take to finally push this through and make agencies feel compelled to change?

Brennan: It certainly isn't something that should be done quickly or without appropriate thought. I'm an advocate of having a review of the U.S. governance structures that's going to transcend administrations. It's going to be something that people are going to get together and say, "What type of governance structures and changes need to take place so that we can deal with the challenges of 2015, 2020?" The Department of Defense went though the Goldwater-Nichols Act [which changed the military command structure], but I would argue reorganizing a department is easier than reorganizing how many agencies are going to interoperate. I think we still are struggling with that.

Q: Would it make sense then to make the Director of National Intelligence more like the FBI director, someone who's not necessarily going to leave when the administration changes?

Brennan: I'm an advocate of having term appointments for the Director of National Intelligence. I think it makes sense. But the intelligence community is a subset of the broader national security establishment, which is a subset of the broader U.S. government. I would argue that the challenge for the next decade is how you're going to ensure better interaction between the federal, state, and local elements, in terms of information sharing, knowledge, and expertise.

Q: In your estimation, where is the threat level of terrorism today versus where it was right after 9/11? How big is the threat domestically? How has it changed?

Brennan: There are two sides to that coin. Whenever you do a net assessment, you look at the threat and the vulnerability. Let me take the vulnerability side. A lot has happened in the past six years in terms of making the homeland a much less hospitable environment for terrorists to ply their trade. We should feel good that our borders are not as porous. There's a much more substantial watch-listing effort. And a much better capability to detect terrorists and terrorist activity within our borders.

That said, on the threat side, while Al Qaeda, the organization, has been badly bloodied since 9/11, they still retain a potentially lethal capability. There has been a metastasis. Al Qaeda has manifested itself in a lot of different countries and communities, and it's a movement that continues to be grown and fueled by a number of factors.

One, is, since the collapse of the Soviet Union, we no longer have this bipolar world where you had the United States and the Soviet Union competing with each other and proxies lining up behind them. We now have basically a unilateral world with the United States as the sole superpower from a military and economic standpoint. But also, we've seen the fading away of a lot of competing ideologies: socialism, Baathism, Nasserism, communism and others. They have been discredited. You have in some respects Western capitalism on one side, and on the other side, maybe those religiously-driven forms of extremism. Islamic extremism has filled the void where in the past there were alternatives in terms of competing ideologies. We don't have the same number of "-isms" out there. And so I think this [Islamic extremism] is going to continue to garner support and recruits in different parts of the world.

Q: Compare our ability to counter ideologies versus our tactical capabilities to collect more intelligence, to share it, to do more sophisticated things with it.

Brennan: I think unfortunately we have been way behind the curve as far as the public relations campaign -- making sure the image of the United States is seen in a more positive light. When I first went to the Middle East, I studied in Cairo in 1975, and the U.S. was viewed as the sponsor and supporter of Israel. But when I was in Egypt, I was regularly befriended by people, because Americans were still looked upon in a very positive way. Unfortunately, the U.S. image now is not the same as it was several decades ago. The Iraq situation, unfortunately, was viewed as military adventurism on the part of the United States. We need to repair that image. We need to make sure we convey to the world the types of things the United States is committed to. That is very difficult. Focusing on the downstream effort is, in some respects, easier because it's more tangible. You can go after those high-value targets; you can go after those training camps.

Q: In the 2004 campaign, it seemed you had on one hand President Bush talking about downstream efforts, and then John Kerry articulating something more like the public diplomacy approach. It became a partisan division: that if you were for public diplomacy, you were weaker and identified with Democrats, and if you were on the Republican side, then you were with the president and fighting the fight. It seems not that pronounced this time, and that the candidates are talking more about combating ideologies. Is there still a divide between hard war and soft war?

Brennan: I think there is a divide. Obama is a good example in terms of the different approaches between the parties. In the articulation of the public effort, there needs to be the companion discussion about the need to act forcefully to ensure that U.S. lives and property are protected. I think some of the statement you see coming out from the Democratic side is to reassure the American public that although public diplomacy is going to be a major part of that foreign policy approach, it's not going to be at the expense of ensuring that we're going to be able to utilize military and other measures to take action against the threats.

Q: Assess the debate in Congress and with the administration over reforming the Foreign Intelligence Surveillance Act. [Democratic lawmakers allowed the temporary extension of that law, the Protect America Act, to expire, over the vehement objections of the White House.] Why has it come to this point where politics has arguably pulled things off the rails?

Brennan: There is this great debate over whether or not the telecom companies should in fact be given immunity for their agreement to provide support and cooperate with the government after 9/11. I do believe strongly that they should be granted that immunity, because they were told to do so by the appropriate authorities that were operating in a legal context, and so I think that's important. And I know people are concerned about that, but I do believe that's the right thing to do. I do believe the Senate version of the FISA bill addresses the issues appropriately. [Director of National Intelligence] Mike McConnell, I think, did a very good job trying to articulate the distinctions between the old FISA law, the FISA understanding under the Protect America Act, and then the House and Senate versions.

There are many types of scenarios for signals [for example, telephone calls and e-mails] to be accessed. But whenever this happens, there needs to be some substantive predicate, a probable cause, that someone is being targeted appropriately. There is an important issue about timeliness. And even though you can go through the FISA process, particularly when you're dealing with terrorism issues, there needs to be an understanding that intelligence agencies can move quickly if certain predicates are met. We shouldn't be held hostage to a complicated, globalized [information technology] structure that puts up obstacles to that timely collection. I think there are some very, very sensible people on both sides of the partisan divide trying to make this happen. And it's unfortunate that it's become embroiled now in a partisan debate in some quarters. But I think that's expected in any election year, especially one like this.

Q: So how do we get to the point where the public has reasonable assurances that what an intelligence agency does to determine probable cause, or that predicate, is based on sound technique?

Brennan: Maybe there needs to be a system of executive, legislative and judicial representatives who are going to oversee and ensure that this moves along the right path. It really takes those three legs of government to make sure there aren't advertent or inadvertent abuses.

You can have FISA judges and representatives from Congress, not to routinely review those individual requests [for surveillance], but the process, the criteria, and to make sure it's being followed in a strict fashion.

Q: You know that one big debate about FISA is the question of balancing security and privacy and civil liberties. Speaking as someone who has spent your life in counterterrorism, what do the terms "privacy" and "civil liberties" mean to you, and what is that balance?

Brennan: First of all, privacy and civil liberties mean so many different things to different people. There are people on one end of the spectrum that don't want to have any government interference or insight into what you're doing.

To me, I think the government does have the right and the obligation to ensure the security and safety of its citizens. If there is probable cause, reasonable suspicion, about the involvement of a U.S. person in something, the government needs to have the ability to understand what the nature of that involvement is. The threshold for that type of government access can be high or can be low, and it needs to be somewhere in the middle.

It really gets back to that issue of what is the substantive predicate. ... If we know there's a terrorist overseas that has been involved in activities, but he's also an import-export dealer, and he reaches out to Shane Harris because you happen to be an importer of stuff -- you're a U.S. citizen -- and we can see there's contact going on there, well, is that sufficient to give us reasonable suspicion that Shane Harris is involved in something? And Shane Harris happens to be in touch with somebody in his neighborhood that has a past record in engagement in some type of things. So there is going to be a judgment call here.

And what I think is important is that there needs to be an airing of this issue, public hearings that Congress can hold. You can't explain the issue in such rich detail that you can say exactly where that line is going to be drawn. But there needs to be an articulation of those triggers that the American people overall feel, yes, that's the right thing for the government to do.

You don't want to just troll and with a large net just pull up everything. There are technologies available to pulse the data set and pull back only that which has some type of correlation to your predicate.

Q: Is this the difference between the government controlling information, locking it down, and having controlled access to certain data sets which do exist?

Brennan: Right. And I would argue for the latter. Private sector companies can do things the government is unable to do, for marketing to their clients. I would argue the government needs to have access to only those nuggets of information that have some kind of predicate. That way the government can touch it and pull back only that which is related. It's like a magnet, set to a certain calibration. That's what I think we need to go to.

In the immediate aftermath of 9/11, the threshold, quite frankly, was low, because we didn't know the nature of the threat we faced here in the U.S. Every effort was made by the government to try to get as much understanding and visibility into what else might be out there that's going to hurt us again. Now that a number of years have passed, we need to make sure the calibration is important. But maybe in a period of heightened threat you have to recalibrate that based on new information you have -- new intelligence that's going to give you a better sense of where to aim your magnet.

These are things that need to be discussed openly -- not to the point of revealing sources and methods and giving the potential terrorists out there insight into our capability -- but to make sure there is a general understanding and consensus that these initiatives, collections, capabilities, and techniques comport with American values and are appropriately adjusted to deal with the threat we face.

Q: How does the next president go about doing that?

Brennan: It's going to be a real tough job. Even though people may criticize what has happened during the two Bush administrations, there has been a fair amount of continuity. A new administration, be it Republican or Democrat -- you're going to have a fairly significant change of people involved at the senior-most levels. And I would argue for continuity in those early stages.

You don't want to whipsaw the [intelligence] community. You don't want to presume knowledge about how things fit together and why things are being done the way they are being done. And you have to understand the implication, then, of making any major changes or redirecting things. I'm hoping there will be a number of professionals coming in who have an understanding of the evolution of the capabilities in the community over the past six years, because there is a method to how things have changed and adapted. My advice, to whoever is coming in, is they need to spend some time learning, understanding what's out there, inventorying those things, and identifying those key issues or priorities that they have -- FISA or something else. They need to make sure they do their homework, and it's not just going to be knee-jerk responses.

Q: In other words, don't come in and do a housecleaning?

Brennan: Right -- not just in terms of people, but also programs. You don't want to create upheaval, because it will create a disruption in the system. There are still a lot people who say we have to implement all of the recommendations of the 9/11 Commission. I have problems with some of those, because they're not really anchored in reality. Sometimes a superficial understanding of a problem leads one to making superficial decisions.

Q: It seems unlikely that any of the leading candidates would come in and dismantle things. They're fairly savvy to the kinds of things you're talking about. Is that the case, or is there still a risk there will be a political calculation, in that the next president will need to make a demonstrable effort to wipe the slate?

Brennan: I don't think anybody's going to come in and just make wholesale changes. But there's going to be a learning curve... at a time when you're still faced with national security challenges. So they have to be learning as they go, but at the same time managing all these issues and making sure they don't drop any balls at all. It's going to be challenging, and I wouldn't be surprised if some of America's enemies didn't see if they could take advantage of that transition, and to see whether or not they can do things that are going to be confrontational and provocative to test the new administration.

Published in National Journal.

Labels: CIA, Director of National Intelligence, FISA, Homeland Security, Interviews, Management, NSA surveillance, Politics, Terrorism, Transition of Power

Shane Harris | Friday, March 07, 2008

Wow, they really did it.

Defying expectations, the House adjourned for recess Thursday and will let the Protect America Act expire tomorrow. Unwilling to try and iron out differences between their bill and a version passed this week by the Senate, lawmakers will take up the thorny issues of telecom liability and oversight of intelligence surveillance at a later date. I don't think anyone would have predicted that in a blinking contest with the White House, Nancy Pelosi would emerge the victor. But here we are.

Senior intelligence officials, including the director of national intelligence, have been making the media and talk show rounds. They're being challenged on the question of whether intelligence activities will cease when the PAA expires. Surveillance already in place will continue, but the intelligence community will have to go through the "old" process of obtaining warrants if they want to start new surveillance. Those rules will be dictated by the Foreign Intelligence Surveillance Act (FISA), barring any orders to the contrary by the president—and don’t count that out.

The big question, though, seems to be whether or not the telecom companies assisting in any new surveillance think they will have legal protections going forward. I have pinged some national security lawyers on this, and the consensus is that they would have immunity for whatever they're doing now under PAA, and that said immunity would continue until those activities stop, regardless of whether the law is in effect. (Surveillance authorized and conducted under PAA can continue uninterrupted for one year.) But presumably any new surveillance would not have immunity, since it would be taken up under FISA.

Think of it this way. It's like giving a high-school student a permanent hall pass during third period French, but not during fourth period chemistry. The companies will find themselves now in the position of operating different kinds of surveillance under different standards and with different protections. Democrats have a point that letting PAA expire will not bring the government’s intelligence efforts to a halt. But letting the law expire does nothing to clarify the rules of the road.

Labels: Director of National Intelligence, FISA, Law, NSA surveillance, Politics

Shane Harris | Friday, February 15, 2008

Would Democrats let Protect America expire?

Comments by House Majority Leader Steny Hoyer suggest that Democrats might be preparing to let the Protect America Act expire this week. They would then use the next few weeks to pass a longer-term law.

Voice of America has a roundup of member positions this morning, and quotes Hoyer.

Hoyer asserted to reporters that even if the foreign intelligence surveillance law [PAA] expires, Americans will not be in danger and the intelligence community will be able to continue intercepting communications of suspected terrorists.

Expressing disappointment with the vote [yesterday not to extend PAA for 21 days], Hoyer does not expect Democrats will attempt another short-term extension, although he wouldn't rule this out, saying Democrats will use coming weeks to work on a bipartisan bill acceptable to President Bush. "In the event that the Protect America Act is not extended, we nevertheless intend to use the next 21 days for the same purposes, that is to try to see if we can reach agreement between the House and the Senate, on a bill that would enjoy broad support in the House and the Senate,” he said.

Interesting. I had predicted that the Dems would vote for the Senate bill that passed earlier, but Hoyer is certainly putting another route out there. This move would, of course, inspire the wrath of Republicans and the White House, but that would presumably inspire Democrats to work quickly on a new law. I still think the Dems will vote to pass the bill this week, but we’ll see.

IN THE WEEDS CONTENT: To clear up some of this business about whether surveillance activities will be put at risk if the PAA is allowed to expire. Here's how this works. Under the law, surveillance activities are conducted per the authorization, or certification, of the attorney general and the director of national intelligence. Essentially, they identify targets, and the intelligence community starts monitoring them. That surveillance is allowed to continue uninterrupted for one year. It does not expire when the PAA expires.

So, for example, if the government begins a new surveillance today, that surveillance can continue until February 14, 2009. It would not have to be shut down at the end of this week, when the PAA expires. And it’s important to note, what’s included in said surveillance is classified. But based on the law, and a lot of reporting, we know that the intelligence community is looking at whole groups of communications; we’re not only talking about single wiretaps here.

Now, if the PAA expires, the government would have to begin any new foreign intelligence surveillance under FISA. In other words, they'd have to go to a judge before they begin surveillance, which would be limited to individual targets and would be subject to the same rules of the road that were guiding surveillance before PAA was enacted. When intelligence officials say that without PAA their efforts will be hindered, that’s because they would be slowed down, legally and bureaucratically. Remember that when the National Security Agency’s warantless surveillance program was revealed, senior officials said that they had to go around FISA because that law was unsuited to the technology landscape—full of cell phones, e-mails, instant messaging—and to their need to engage in “hot pursuit” of suspected terrorists. There are lots of other reasons officials don’t want to revert to FISA, but for immediate purposes, this is probably the most important.

It's not clear whether or not the secret orders the president issued in October 2001—the ones that kicked off the NSA’s warantless program—would come into play if PAA were no longer in existence. I have to presume that the president could issue new orders if he felt that was necessary, to continue surveillance activities in lieu of the PAA. Bottom line, our intelligence-gathering efforts are certainly tied up in this law, but they are not hanging on it.

Labels: Director of National Intelligence, FISA, Law, National Security Agency, NSA surveillance, Politics

Shane Harris | Thursday, February 14, 2008

House seems poised to approve Senate's FISA bill

The House voted down a Democratic measure that would have extended the Protect America Act for another 21 days. Joining the unanimous Republican vote were 34 Democrats (list below). In breaking ranks, they have positioned the House to take up a Senate bill that makes major changes to the Foreign Intelligence Surveillance Act, and which passed yesterday evening by an overwhelming majority. The President wants to sign that bill immediately.

It’s increasingly unlikely that the House won't pass the legislation, which includes immunity for telecom companies that helped the government conduct electronic surveillance inside the United States after 9/11. Mike McConnell, the Director of National Intelligence, appeared in the Oval Office with President Bush this morning, who made clear he would veto the House attempt to punt the law for three weeks.

Given House Intelligence Committee Chairman Silvestre Reyes' rather tepid remarks on immunity yesterday, I doubt the House will put up much of a fight. The Democratic split today shows that the chamber doesn't have the votes to fend off the Senate bill. More importantly, it will be seen as a revolt and evidence that House Speaker Nancy Pelosi and Senate Leader Harry Reid have failed to hold a coalition against the Bush administration on intelligence activities that the Democrats have protested for more than two years.

The Protect America Act expires on Saturday. The ACLU has just called upon House members to let it expire, a game of chicken that Democrats have shown zero willingness to play. I think we'll have a new law on the books before the week is through.

For the record, here’s the list of Dems who voted not to extend PAA for three weeks. There are some surprising names here. Dennis Kucinich is hardly a friend of the administration on this issue. And Maurice Hinchey was a thorn in the White House’s side over the president’s halt of a Department of Justice inquiry into NSA-related activities.

UPDATE AND NOTE: A reader correctly points out that many of the following members voted against the PAA in its original incarnation. In fact, only five members--Altmire, Boren, Boswell, Peterson, and Walz--voted to extend the act today. The reader notes, "How could you vote to extend something you didn't vote for in the first place. They [members voting no] WERE NOT siding with republicans."

I note, however, that they were still breaking with their party, and, whether intentionally or otherwise, helping force the House to act on the Senate bill this week.

Jason Altmire (PA)

Dan Boren (OK)

Leonard Boswell (IA)

Michael Capuano (MA)

Jerry Costello (IL)

Lincoln Davis (TN)

Peter DeFazio (OR)

Lloyd Doggett (TX)

Bob Filner (CA)

John Hall (NY)

Maurice Hinchey (NY)

Rush Holt (NJ)

Dennis Kucinich (OH)

Barbara Lee (CA)

John Lewis (GA)

Tim Mahoney (FL)

Jim Moran (VA)

Christopher Murphy (CT)

Patrick Murphy (PA)

Frank Pallone (NJ)

Donald Payne (NJ)

Collin Peterson (MN)

Steven Rothman (NJ)

Loretta Sanchez (CA)

John Sarbanes (MD)

Jan Schakowsky (IL)

Jose Serrano (NY)

Tom Udall (NM)

Tim Walz (MN)

Maxine Waters (CA)

Mel Watt (NC)

Lynn Woolsey (CA)

David Wu (OR)

Labels: Director of National Intelligence, FISA, Law, National Security Agency, NSA surveillance, Politics

Shane Harris | Wednesday, February 13, 2008

Clinton and Obama avoid future weak-on-terror ads

Sens. Hilary Clinton and Barack Obama will avoid a spate of weak-on-terror ads by John McCain or his surrogates, particularly those alleging the senators voted to deny intelligence agencies the power to monitor terrorists’ phone calls or e-mails. That's because when time came to vote on a new intelligence surveillance law, the presidential candidates didn't vote.

The Senate passed S. 2248, the FISA Amendments Act, by an overwhelming majority of 68 to 29. Clinton and Obama were two of three senators listed as "not voting." Republican Lindsey Graham was the third. John McCain, the presumed Republican presidential nominee, voted in favor of the bill.

As I noted earlier today, Clinton didn't vote on the most controversial amendment to the bill, granting immunity from lawsuits to telecom companies that assisted the government with warantless surveillance activities. That amendment passed and is in the final bill that now heads to the House. (Obama voted against immunity, McCain for it.)

The Clinton campaign told Marc Ambinder at The Atlantic, "Senator Clinton was unable to vote earlier, but she has made her strong opposition to this legislation crystal clear." The senator was in Texas campaigning.

The FISA Amendments Act was arguably the most important piece of national security legislation taken up by the Senate in the past year. Presumably, the Democratic candidates’ non-votes will shield them from Republican accusations that they voted against the intelligence community. Maybe they saw the RNC Daisy ad. There’s also a decent chance that Obama and Clinton, despite statements to the contrary, actually think the Senate has passed a decent bill, one that a future president would find advantageous.

Labels: FISA, Law, National Security Agency, NSA surveillance, Politics

Shane Harris | Tuesday, February 12, 2008

"This is the sound of settling."

With apologies to Death Cab for Cutie.

The Senate has passed a bill that amends the Foreign Intelligence Surveillance Act (FISA) and offers immunity to companies that assisted the government with electronic surveillance after the 9/11 attacks. Now it's onto the House, which has already passed its FISA fix, without the immunity clause. What are immunity’s chances of survival?

Well, House Intelligence Committee Chairman Silvestre Reyes, D-Tx., has just released a telling statement. The meat is in the second paragraph.

Last November, the House passed strong legislation that would modernize our surveillance authorities to monitor terrorists abroad while preventing government spying on Americans. As we begin to negotiate with the Senate, I plan to advocate strongly for the House bill, which contains important protections for the constitutional rights of Americans

We have also begun to review the documentation provided recently on the alleged role played by the private sector in the President’s warrantless wiretapping program. These documents raise important questions, and it will take some time to gather enough information to make a determination on the issue of retroactive immunity.

No passionate opposition to immunity. No defense of the House's previous vote not to grant it. "It will take some time."

This is a far cry from the stand that Democrats in the Senate took earlier today, when they tried to strip immunity from the bill that now goes to the House. Immunity is looking mighty healthy. (BTW, when the Senate Intel Committee looked at those documents Reyes is reviewing, they came down in favor of immunity.)

In related developments, House Judiciary Committee Chairman John Conyers, Mich., released a letter a few hours ago that he sent to Fred Fielding, the White House counsel. Conyers demanded that his committee members be read into the National Security Agency's terrorist surveillance program, so that they, like their Intel Committee colleagues, could assess whether or not immunity was warranted. Conyers made it clear he didn't think it was.

As for Reyes' assessment that it's going to take some time to hash through said documents, the House has until Friday. That's when the latest extension of the Protect America Act, the temporary grant of warantless surveillance authorities, expires, and the White House has said it will not approve any more of them. Unless the Dems are prepared to face the onslaught of charges that they're letting down the country's guard against terrorists, look for a final bill before the end of the week.

Labels: FISA, Law, National Security Agency, NSA surveillance, Politics

Shane Harris | Tuesday, February 12, 2008

Presidential candidates split over telecom immunity

The Senate has voted to grant immunity to telecommunications companies that assisted the government with electronic surveillance in the wake of the 9/11 attacks. Here's the roll call of votes.

The immunity amendment is part of the Senate Intelligence Committee's bill to modify the Foreign Intelligence Surveillance Act. The three senators running for president split over the immunity amendment.

Sen. Obama voted to strip it (so, he voted for no immunity).
Sen. McCain voted not to strip the amendment (voted for immunity).
Sen. Clinton did not vote.

No surprise on the first two. But Clinton's non-vote is most interesting. She was never considered fully onboard with the anti-immunity crowd, represented most vocally in the Senate by Christopher Dodd (D-Conn.). Presumably, this hands Obama an arrow to fire at his rival, who has criticized the former Illinois state senator for his record of "present" votes.

But I’m not sure how sharp this arrow is. Obviously, the liberal wing of the Democrat party will have some problems with her non-position position. But I don't see how this costs her anything in the primaries, or in the long run. But let’s see how she votes on the full bill, or if she does.

Labels: FISA, Law, National Security Agency, NSA surveillance, Politics

Shane Harris | Tuesday, February 12, 2008

RNC goes Daisy

The Republican National Committee has a new ad warning that Harry Reid, Hillary Clinton, and Barack Obama are playing into terrorists' hands by trying to block permanent changes to surveillance law. Not that Republicans haven't been playing tough over this issue. They’ve also tried to assert that if the Protect America Act is allowed to expire, all intelligence-gathering will come to a halt. That's not true, although it could be harder to monitor new targets.

But what's noteworthy about this RNC ad is that we've seen it before, in the Johnson-Goldwater campaign from 1964. The famous (or infamous, if you supported Goldwater) “Daisy” spot was only aired once, but may have so successfully stoked Americans’ fears about nuclear annihilation that it helped LBJ win the election. The RNC ad all but says Americans will be killed by Al Qaeda if Clinton or Obama win the presidency. Expect to see the full-fledged Daisy version as we get closer to November.

Putting that aside for the moment, what's perhaps most politically notable about the GOP-Dem fight over the Protect America Act is that the Democrats have been unable to capitalize on their position for their own gain. They don’t really want to bankrupt telecommunications companies who helped the NSA monitor phone calls and e-mails after 9/11, even though they did so without traditional warrants. And neither Democrats nor Republicans believe that the law shouldn't be changed to make it easier for intelligence agencies to do their job. The politics of this debate have become so basic that there's little room left for serious debate or discussion of broader implications from a change to law, and whether those should be taken into consideration.

I think that if you assess this fight purely on the politics, Democrats are once again coming out on the losing end. They seem either unwilling or unable to assert an alternative to the kind of line the RNC is putting out in its video, which may have some fair points but obviously is not designed to encourage an intellectual discussion. This is all very strange, because Democrats have proposed dramatic changes to surveillance law that their traditional allies in the civil liberties community find repugnant. It's not as if Dems are truly obstructionist on this stuff. But they are letting themselves be painted as such.

Labels: FISA, Homeland Security, NSA surveillance, Politics, Terrorism

Shane Harris | Friday, February 08, 2008

France says "non" to Iran NIE

So now, in addition to the Director of National Intelligence, and the President of the United States, add the French government to the dissent column on the explosive National Intelligence Estimate on Iran's nuclear weapons program.

Herve Morin, the French defense minister, was in Washington yesterday, and he said that “coordinated information from a number of intelligence services leads us to believe that Iran has not given up its wish to pursue its [nuclear] program,” and is “continuing to develop” it. Morin (unsurprisingly) called upon the International Atomic Energy Agency to “continue carrying out all the necessary investigations” into Iran's nuclear activities. The IAEA has also doubted U.S. intelligence.

The French dissent is significant on a number of levels. First, France is a key ally in the administration’s hard line against the Iranian regime, and having their defense minister sound such a provocative note of caution could help put the wind back in the administration’s sails as it tries to rally international pressure on Iran. When the NIE reversed earlier claims that Iran was pursuing a nuclear weapon, it presumably undercut the administration’s push to impose harsher international sanctions on Iran.

Second, note that Morin said “a number of intelligence services” had provided information that led France not to concur with the United States’ key judgments—ones, it should be noted, that the president sought to distance himself from the very day they were declassified. France is saying that a community of nations, which certainly includes Israel, have pooled their notes, and that they find plenty of reason to believe the United States is missing the mark. This contrary assessment probably hinges on Iran’s continued pursuit of enriched uranium, as well as its ongoing ballistic missile program. (See my previous post on how President Bush homed in on these legs in Iran’s nuclear platform.) France has expressed great concern over Iran's pursuit of ballistic missiles, which could threaten Israel and U.S. bases in the Middle East.

The Russian and Chinese governments—whose support for sanctions is key at the United Nations—haven’t come out in opposition to the NIE, but it doesn’t hurt President Bush’s case to keep up the pressure by having a key European ally come over to his side, especially one that feels threatened by Iran. The United Nations Security Council this week considered a new proposal from the United States and France, among others, for new sanctions against Iran.

Labels: Director of National Intelligence, Iran, Politics

Shane Harris | Friday, February 01, 2008

Presidential dissent on the NIE?

President Bush offered fresh evidence in his State of the Union address last night that not all decision-makers share the intelligence community's view on Iran's nuclear ambitions. Although he was remarkably restrained in his rhetoric--particularly in comparison to years past--Bush homed in on Iran's uranium enrichment and ballistic missile programs to remind us that the country still poses a mortal threat.

Tehran is also developing ballistic missiles of increasing range and continues to develop its capability to enrich uranium, which could be used to create a nuclear weapon. [Note: The recent National Intelligence Estimate on Iran's nuclear program doesn't contradict him on this point.] ... Our message to the leaders of Iran is also clear: Verifiably suspend your nuclear enrichment, so negotiations can begin. And to rejoin the community of nations, come clean about your nuclear intentions and past actions, stop your oppression at home and cease your support for terror abroad. But above all, know this: America will confront those who threaten our troops, we will stand by our allies and we will defend our vital interests in the Persian Gulf.

The NIE concluded that Iran halted its nuclear weapons program in 2003, but it narrowly defined said program as "Iran’s nuclear weapon design and weaponization work," as well as its covert work to convert and enrich uranium. In other words, this assessment does not cover Iran's civilian enrichment work, which holds so-called "breakout potential" for a weapons program, nor does it cover work on building a missile to deliver a bomb. Still, it seems the community's view is that a full weapons program cannot come to fruition without the key weaponization piece.

The president, though, clearly thinks otherwise, and he's not alone. No less than the Director of National Intelligence, Mike McConnell, said recently that he thinks--apparently despite the NIE's findings--that Iran is on the path to obtaining a nuclear weapon.

This all could be evidence of a high-level split between the intelligence community and its customers. But there's another possibility. Intelligence is a special policy input, but it is, in the end, just one input. It's usually a mistake to take any single NIE or intelligence stream as dispositive. The president learned that painful lesson in the run-up to war in Iraq. Some might find it refreshing that this administration, even if in its final days, is not once again hanging its policy towards a key Middle Eastern country on inherently murky intelligence. It just may be that this time the country in question actually does have nuclear weapons, despite what the intelligence community believes.

Labels: Director of National Intelligence, Iran, Politics

Shane Harris | Tuesday, January 29, 2008

FISA has hit political rock bottom

The Protect America Act, a six-month modification to the Foreign Intelligence Surveillance Act that directly affects the National Security Agency's terrorist surveillance program, expires on Feb. 1. It's looking more and more like the Congress will punt on this one, passing another temporary extension--perhaps as short as one month--while lawmakers try and sort out a compromise on the law's most intractable issue: immunity for telecom companies that assisted the government in the NSA program after the 9/11 attacks.

The fact that there has yet been no bargain on this point is an excellent measure of just how politically poisonous the debate over intelligence gathering has become. When Protect America was enacted last summer, no one thought a permanent law would be stymied by the immunity debate. As I wrote last month, immunity is actually a Trojan Horse for the administration's critics to pry loose more information about classified intelligence activities.

Very few lawmakers honestly believe that the telecom companies acted in bad faith when they helped the government monitor phone calls and e-mails, and very few want to expose those companies to potentially devastating lawsuits. There is also very little practical difference in the kind of permanent eavesdropping laws that Republicans and Democrats want to enact. (See Ben Wittes' excellent analysis on this fromThe New Republic.)

Given their positions, there's no logical reason, or even a very principled one, why congressional Democrats and Republicans and the White House can't hammer out a deal here. The FISA debate has now become utterly political. And despite how one feels about the merits of this law or its proposed changes, history shows us that the mix of politics and intelligence is a dangerous one.

Labels: FISA, Law, National Security Agency, NSA surveillance, Politics

Shane Harris | Wednesday, January 23, 2008

"Part-time help" at DHS is leaving

The No. 2 official at the Homeland Security Department, Deputy Secretary Michael Jackson, is leaving his post for financial reasons, he announced in an e-mail to colleagues today. Jackson has been at DHS since March 2005. He said he'll leave next month.

I interviewed Jackson in May about his efforts to prepare DHS for the upcoming presidential transition. The department has been plagued by turnover at the senior most levels, a fact that Jackson acknowledged, and experts worry that this makes the department especially vulnerable in the normally rocky hand-off from one administration to another.

"We've had a significant turnover," Jackson said. "And that turnover has been below the top-level jobs as well."

Some of Jackson's other quotes about DHS' personnel issues seem rather ironic now, in light of his decision to leave.

• "We're trying to nurture a cadre of owners. I am the part-time help at DHS."
• "I won't blow smoke at you and say everything is nailed down and perfectly fixed. The day that someone in my department tells you that about DHS is the day that person should get out of his job."
• "If a day goes by and I don't use up some of my brain cells focusing on this [transition] problem, it's a very unusual day."

Jackson insisted that the transition was "not something I feel anxiety about." But employees and DHS watchers are likely to feel a mix of anxiety and maybe some relief with this changing of the guard. On the one-hand, Jackson was managing the sprawling department day-to-day, along with an army of lieutenants. His exit leaves an important vacancy at the very top, which officials will, presumably, scramble to fill.

But others might welcome the change. Some of Jackson's critics have accused him of micro-managing decisions, and not yielding enough authority to his subordinates. Those critics say that DHS could operate more efficiently with a lighter touch.

Regardless of how Jackson's departure is greeted, though, one thing is sure: This puts DHS in a precarious position. The department desperately needs strong leadership, and its hierarchical structure necessitates that it come from the top. The new deputy may change that, but for now, it's the way things are.

As an aside, political strategists will likely see no coincidence between the timing of Jackson's departure and the nomination of Michael Mukasey to be attorney general. When Alberto Gonzales announced his intention to resign, the early betting was on DHS Secretary Michael Chertoff to replace him. Presumably, had Chertoff become AG, Jackson would have moved up to secretary at DHS. I don't know what financial concerns were behind Jackson's decision to depart, but many will presume that when it was clear he wasn't being promoted, that fact figured into his calculus.

For his part, Chertoff had this to say about his departing colleague in a press release.

Michael will leave this department having made an enduring impact on our homeland security. At this department, he was fundamental in invigorating our operating components, fusing our intelligence capabilities, building a new FEMA, and managing the response to the disrupted airline plot of August 2006. He brought tremendous focus, discipline and planning to department-wide operations, budgets and polices, and he significantly advanced the integration of our component agencies. Michael kept an open door for all 208,000 employees, and was relentless in building with them a common department culture. His work has earned him wide respect throughout the Congress, with state and local officials and among international allies.

Our homeland is more secure and better prepared as result of Michael’s tireless service, and on behalf of all Americans, I offer him our deep gratitude. I respect and admire his difficult decision to move on, and I look forward to our continued friendship.

Labels: Homeland Security, Management, Politics, Transition of Power

Shane Harris | Monday, September 24, 2007

Why Michael Chertoff is a radioactive pick for AG

Just when you thought it was safe to come back from vacation...

At the same moment we learned Alberto Gonzales would step down as attorney general, that favorite Washington parlor game, "Replacement Pick," kicked into high gear. Initial speculation focused on Homeland Security Secretary Michael Chertoff, a former prosecutor, federal judge, and senior Justice Department official, who, some have long thought, has had his eye on an an eventual AG nod or a Supreme Court nomination in exchange for his DHS service.

But the odds now seem against Chertoff. The chatter I'm picking up has him as a long-shot pick. One concern is that moving any cabinet secretary into the AG slot would mean two confirmation hearings, at a time when the administration would prefer to keep its chieftains out of Congress' crosshairs.

I see three big reasons why Chertoff is a radioactive pick as AG. Any one of these might not kill his chances, but cumulatively, I think they add up to a no-go.

1.) Katrina. Today is the second anniversary of the storm's devastation of New Orleans and the Gulf Coast. Chertoff had been on the job six months at the time, and his department's response, like the hurricane itself, was a disaster. The Gulf still reels from the storms' effects. (The Times Picayune had this message, blasted across its front page, for President Bush, who's visiting the region today.) Some think Chertoff escaped much of the blame for the response, and even though his duties as attorney general would have nothing to do with storm recovery, confirmation hearings would force him to answer questions about his actions two years ago.

2.) Torture Memo and Guantanamo Detainees. It's worth revisiting Chertoff's confirmation hearings, at which he faced intense questioning about his role in crafting a memo on detainee treatment. The questions held up the hearings for a time. Mark Benjamin digs deep on this in a piece for Salon, in which he pointedly asks, "Did Chertoff lie to Congress about Guantanamo?"

3.) Politicization and mismanagement at DHS. The new attorney general is supposed to restore credibility and career morale at the Justice Department. Given Chertoff's mixed track record on both fronts at Homeland Security, it's questionable whether lawmakers would see him as the right man for that job. The department is in the midst of a transition from mostly political leadership to career managers. Under Chertoff, the trend towards political management--and politicization--was palpable. The House Homeland Security Committee has cited "critical leadership vacancies" at the department; a quarter of top positions remain unfilled. As I wrote in June, DHS has a reputation as a land of misfit toys, a place where Bush loyalists and partisans get patronage posts for which they lack qualifications. Despite Chertoff's efforts now to turn that tide, the reputation has stuck, and one can imagine how lawmakers would judge skeptically his ability to cleanse Justice of the stain of partisanship.

So, who are the leading contenders to replace Gonzales? The field appears wide open at the moment, which is a good indication that the White House is slowly and deliberately reaching out to several candidates, either to feel out their interest or to begin wearing them down so they'll eventually agree to take the job.

For my part, I'm putting early money on a dark horse candidate, who, a colleague perceptively noted, is a protege of White House counsel Fred Fielding, the man heading up the AG search. I'm going with former federal judge Michael Luttig, now general counsel at Boeing. The only hole missing in this man's impeccable resume is a stint as attorney general. Luttig had a dust-up, of sorts, with the administration over the Jose Padilla case. (He had ruled the administration could hold Padilla, a US citizen, as an enemy combatant, and later refused the government's request to transfer him to criminal court.) But I'm not convinced that rules him out as a pick. (It will certainly provide fuel for the president's critics, however.) Still, Fielding is known to consider Luttig one of his proudest accomplishments. See Luttig's resignation letter, in which he thanks Bush's father for making his dreams come true, and sums up his view of the judiciary's role in the war on terror. Fielding, you should remember, also groomed another bright jurist by the name of John Roberts.

Scenario 2: In a replay of the 2000 Cheney-led search for a vice president, Fielding himself is put up for the job. Bush has a rough track record with White House counsels turned-AG (read, ahem, Al Gonzales), and Harriet Miers didn't fare so well in her attempted jump to greener pastures. But Fielding is respected by Republicans and Democrats, and by several accounts, despite his role in stalling the White House's response to congressional subpoenas on US Attorneys and warrantless wiretapping, is reportedly well-liked by both sides.

Labels: Homeland Security, Justice Department, Politics, Transition of Power

Shane Harris | Wednesday, August 29, 2007

Talk of the Nation--assessing the latest FISA fix

I joined two members of Congress today to discuss the latest change to the Foreign Intelligence Surveillance Act.

Labels: Media Notes and Appearances, NSA surveillance, Politics

Shane Harris | Monday, August 06, 2007

Wire tapping, and more

No big surprise here, but an important admission from Mike McConnell, the Director of National Intelligence. In a letter to Arlen Specter (Penn.), the top Republican on the Senate Judiciary Committee, McConnell acknowledges that the president authorized the National Security Agency to undertake "various intelligence activities," after the 9/11, aimed at preventing another terrorist attack. I and others have reported on some of these activities over the past year-and-a-half, but McConnell's letter marks the first time any administration official has so publicly acknowledged that the NSA is doing more than just "wire tapping," or intercepting phone calls.

Presumably, McConnell's letter is meant to provide legal cover for Attorney General Alberto Gonzales, whose testimony about his 2004 nighttime visit to John Ashcroft's hospital room left Specter and his colleagues wondering if Gonzales had told them the whole truth about internal disagreements over the NSA "program" at the Justice Department. Gonzales tried to tell Senators that there was no disagreement over the program that the president acknowledged back in December 2005, which McConnell now says was just the wiretapping component, or, in his words, "the targeting for interception without a court order of international communications of Al Qaeda and affiliated terrorist organizations coming into our going out of the United States."

McConnell is asking members of Congress to change the law that governs such interceptions--the Foreign Intelligence Surveillance Act-- and apparently there's significant disagreement over whether it can be applied to totally "foreign" communications that still pass through cables in the United States.

McConnell's letter to Specter can be viewed in light of his very public lobbying efforts, and not solely as a blocking maneuver for Gonzales. Putting it out there that the NSA is, in fact, undertaking other intelligence activities under presidential order strengthens his argument that the intelligence laws need significant overhaul, not just minor tweaking. Remember, McConnell is a former NSA director, and has strong opinions on adapting intelligence laws to the hunt for terrorists. McConnell also led Booz Allen Hamilton's intelligence division--after leaving NSA--and was involved in the Defense Department's Total Information Awareness program, another effort to track terrorist movements and anticipate their plots.

Bottom line: McConnell has been trying to "modernize," if you like, the intelligence community for the past several years. He has been more public about these efforts than many senior intelligence officials, and will continue to be so. He's not the spokesman for this effort just because he's the DNI--this is a personal mission for McConnell, as well.



UPDATE: According to the AP, Democratic leaders are signaling that a deal on FISA might be imminent.

Labels: Director of National Intelligence, Justice Department, Law, National Security Agency, NSA surveillance, Politics, Terrorism

Shane Harris | Wednesday, August 01, 2007

Can the government spy on foreign communications inside the United States?

Members of the House Intelligence Committee have been engaged in a boisterous debate the past few days over how to change the law that governs electronic surveillance. Republicans are calling for an overhaul backed by the Director of National Intelligence, and Democrats are pushing back, saying that the administration's proposed changes would eliminate many of the current checks-and-balances on the intelligence agencies.

In the latest round, ranking member Pete Hoekstra (R-Mich.) took issue with Democrats' position that the inelligence law does not need to be amended to allow monitoring of foreign persons who are not in the United States. At first glance, the Foreign Intelligence Surveillance Act would seem only to govern surveillance conducted on U.S. persons inside the United States. (That's the Democrats' contention, too.)

But the Republicans have a different view, which--if you closely read a letter Hoekstra sent yesterday to committee chairman Silvestre Reyes (D-Tx)--sheds more light on the particulars about how the government is conducting electronic surveillance.

"You claim that FISA does not require a court order for communications between foreign targets outside the United States. This does not fully or accurately state the law with respect to FISA, and your position would place intelligence community personnel at potential risk of criminal liability if they were to operate outside of FISA without clear legal authority."

If they were to operate outside FISA without clear legal authority. How would intelligence community personnel operate outside FISA? Hoekstra explains:

"Not all of our intelligence is collected under the specific provision of law you mention, and in any event our personnel need clear and binding legal authority in order to obtain cooperation and to have full assurance that their activities are lawful."

FISA isn't the only provision that allows electronic surveillance. The president's authorization of the National Security Agency's warrantless surveillance program also allows it. In addition, Executive Order 12333 gives the intelligence agencies authorities to collect information inside the United States under specific circumstances. But key in on the last bit of Hoekstra's comments: "in order to obtain cooperation and to have full assurance that their activities are lawful."

Does Hoekstra mean cooperation from telecommunications companies? Quite possibly. Why is that important?

"Wiretapping" is no longer a matter of climbing up a telephone pole and putting a bug on the line. The government cannot intercept communications without access to telecom networks--i.e. "cooperation."

The majority of the world's telecom infrastructure is in the United States. We are a hub of global communications. Theoretically, a terrorist in Pakistan e-mailing another terrorist in Algeria could have his message routed through New Jersey. The Republicans seem to be arguing that, under FISA, intercepting that communication inside the United States violates the law, even though the parties to said e-mail reside in foreign countries. The question is, does it violate FISA to grab a "foreign" communication as it passes through our "domestic" infrastructure?

The telecom companies have asked for a a kind of legal immunity for cooperating with government surveillance. Congress has been debating that provision. Hokestra's comments seem to reflect the companies' anxiety that they might technically be violating FISA if they allow the government to intercept communications by foreign parties on equipment based in the United States.

We've seen threads of this theory before, and the debate is no secret. But the war of words between Democrats and Republicans over how to change FISA has been particularly hot this week. This latest salvo by Hokestra is a strong indication that this question over whether, or how, to allow surveillance of foreign persons "inside" the United States is a major sticking point in the FISA reform debate.

Labels: National Security Agency, NSA surveillance, Politics, Terrorism

Shane Harris | Friday, July 27, 2007

Why was Al Gonzales in John Ashcroft's hospital room?

That's what Senators want to know. Gonzales is testifying right now before the Judiciary Committee--not exactly his favorite audience--about a host of issues. But earlier, Senators grilled him over the famous nighttime visit Gonzales and then White House Chief of Staff Andy Card paid to John Ashcroft, back in March 2004, when the attorney general was gravely ill and sedated at George Washington University Hospital.

Ashcroft's attorney general designate, Jim Comey, provided riveting blow-by-blow details of the event during his own testimony a few months ago, and told senators that he thought Gonzales and Card were trying to take advantage of Ashcroft's weakened state in order to get him to sign-off on a reauthorization of the National Security Agency's warrantless surveillance program.

No, no, no...big misunderstanding, Gonzales said this morning. "We went there because we thought it was important for [Ashcroft] to know where the congressional leadership was on this," Gonzales told Senators. He said that lawmakers from both parties had urged him and Card to ensure that the NSA program--which Gonzales didn't actually identify in his testimony--was re-approved before a pending expiration deadline. (As an aside, you could count on two hands the number of lawmakers who actually knew the program existed.) The way Gonzales tells it, he and Card were just there to bring Ashcroft up to speed on Congress' thinking.

The senators are finding this hard to believe, given Comey's account. He said that not only did the White House call over to Aschroft's hospital room and inform his wife that Card and Gonzales were on the way--and Comey seems to recall that that call may have come from President Bush himself--but that when the two men showed up, they were carrying an envelope, in which we are to presume was a document requiring Ashcroft's signature.

What's more, Comey testified that Ashcroft raised himself up from his hospital bed and read Gonzales and Card the riot act, ticking off all the reasons why he wasn't willing to reauthorize the warrantless surveillance. This was no friendly exchange. Comey said, "[Ashcroft] lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me..."And then, in a line that would make a Hollywood action writer blush, Ashcroft declared, "But that doesn't matter, because I'm not the attorney general. There is the attorney general." He pointed to Comey. This is edge-of-your seat material.

What happened next? Comey said, "The two men [Gonzales and Card] did not acknowledge me. They turned and walked from the room."

Now, today, Gonzales insisted that he and Card hadn't come to pressure Ashcroft into signing anything. "Clearly if he had been competent and understood the facts and had been inclined to do so, yes we would have asked him," Gonzales added. "Andy Card and I didn't press him. We said 'Thank you' and we left."

Gonzales clarified this way: "We would not have sought nor did we intend to seek to get any approval from General Ashcroft if in fact he was not fully competent to make that decision." Key phrase: "if in fact he was not fully competent." Gonzales isn't denying that he and Card went to the hospital to get Ashcroft's approval. He's just saying that they didn't intend to seek it if he was not fully competent. At the very least, it seems that Gonzales and Card went to Ashcroft's bed side to see how sick he really was. There's no doubt about what they wanted, and according to Comey, they got it--the White House later reauthorized the program without the attorney general's signature. It took the threat of resignation--by Comey, Ashcroft, and FBI Director Robert Mueller--to compel President Bush to order his staff to bring the NSA program in line with Comey's and Ashcroft's concerns.

Labels: Justice Department, National Security Agency, NSA surveillance, Politics, Terrorism

Shane Harris | Tuesday, July 24, 2007

Homeland Security's rapid exodus

My colleague at Government Executive magazine, Katherine McIntire Peters, has a good story about the exodus of senior officials in the Homeland Security Department's upper ranks.

Senior Homeland Security Department employees left their jobs over the past two years at rates significantly higher than the average for other Cabinet-level departments, according to a report released Monday by the Government Accountability Office.

Attrition rates for Homeland Security's Senior Executive Service positions or those requiring presidential appointment were 14.5 percent in 2005 and 12.8 percent in 2006, the report (GAO-07-758) stated. That's more than twice the average attrition at all Cabinet-level departments of 7 percent and 6 percent during the same years.

Over the past several weeks, we've seen a procession of stories about leadership woes at DHS, which are intensified by the pending transition of power from the Bush administration to the next president, in January 2009. I wrote about this issue in National Journal last month. Then Congress and the Washington Post noted the preponderance of vacant posts in DHS' upper echelons.

Katherine's story on this latest GAO report sheds even more light on the problem. In the past two years, more than half of the senior employees at DHS headquarters in Washington "either resigned or transferred to another department," she reports. In light of employee satisfaction surveys that put DHS at or near the bottom in most categories, one can imagine that a good number of these employees left not just because they got new jobs, but because they wanted out of DHS. "Executives at headquarters, the Transportation Security Administration and the Federal Emergency Management Agency had the highest attrition rates," Katherine reports. Those three organizations, perhaps more than any others in the department, have suffered from low morale, bad publicity, and frequent turnover at the top.

Turnover was also higher than the government average among career, non-senior DHS employees--8.4 percent in 2005 and 7.1 percent in 2006. The overall average for federal agencies was 4 percent. Most of these numbers were accounted for by security screeners at airports, who make up more than one-third of the total DHS workforce. Factoring them out, DHS' numbers for non-senior employees' attrition fell below the federal average. Of course, the fact that there's so much turnover among the people charged with keeping terrorists and bombs off of airplanes might give overseers some pause.

Labels: Homeland Security, Management, Politics, Transition of Power

Shane Harris | Tuesday, July 17, 2007

Trouble in DHS' Upper Ranks

A congressional report out this morning leads off with a story I wrote about the Homeland Security Department's reliance on politically appointed leaders.

Spencer Hsu has a good piece in this morning's Washington Post about that report and the administration's failure to fill about a quarter of the top leadership posts at DHS, "creating a 'gaping hole' in the nation's preparedness for a terrorist attack or other threat, according to a congressional report to be released today." Spencer references my previous story, as well.

"The DHS has one of the largest rosters of senior political appointees in the federal government, in part because of how it was created. The DHS says it has never had more than 220 senior political appointees, although the Office of Personnel Management told Congress of more than 360 in 2004, National Journal reported last month."

The Wall Street Journal's Informed Reader picked up on my story, too, last month. You can also listen to an interview I did with Federal News radio about DHS' political appointees.

Labels: Homeland Security, Management, Media Notes and Appearances, Politics

Shane Harris | Monday, July 09, 2007