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Deputy intel chief warns of narco-terrorism, praises Uribe, says spies should open up

I attended a dinner last night sponsored by the Intelligence and National Security Alliance, and Don Kerr, the principal deputy director for national intelligence, was the guest speaker.

The ODNI has a transcript of Kerr's remarks. I was struck by a few remarks. First, Kerr talked about a recent two-week trip to Latin America. He wasn't clear about why he had gone, but he shared some observations. "Of course there you see the conjunction of narcotics trafficking and terrorism and there may be a nexus forming between them," Kerr said. He continued:
They share the need for money laundering. In fact in Latin America you have a real presence of Hezbollah. Hezbollah, after al-Qaida, is the terrorist organization that has the most American blood on its hands. So if you need to worry about something you might think about our hemisphere where a terrorist organization is involved in money laundering, narco-trafficking, and very close to other criminal enterprise. That to me is the kind of thing that we need to worry about looking forward, not just fixating on the East/West prospects we have for the conflicts we’re in today.
To be fair, I think one should emphasize the word "may" in this connection between narco-traffickers and terrorists, particularly in the context of Hezbollah, because there is a fair amount of debate over this connection and its significance in the counterterrorism community. I'm not dismissing it. But that aside, Kerr really wanted to draw the attention of the audience--mostly intelligence professionals, past and present--to threats that exist "in our backyard."
So we need to be watchful, pay attention in fact our back yard and to just Iraq and the Afghan/Pak border. That was one reason I went to Latin America. [I think there's a transcription error here, and that Kerr said, or meant to say, "and not to just Iran and the Afghan/Pakistan border."]
Kerr then turned to a discussion of Colombian President Alvaro Uribe, who's caught up in a potential regional conflagration after Colombian troops last weekend crossed into Ecuador to kill members of the revolutionary guerrilla group FARC. (The United States is not alone in labeling FARC a terrorist organization.)

"One of the things I’m proud to report to you is that even before last weekend I had the
opportunity to meet with President Uribe," Kerr said. "This is a leader of a country that’s actually succeeding in his endeavor. The number of FARC are now under 10,000. There was, of course, significant further loss last weekend [the Colombian troops killed FARC leader Raul Reyes and 23 of his cohorts] but I think the important thing for all of us to understand,
this is a leader of a democracy who has an 80 percent support rating from his citizens."

The rest of Kerr's remarks, while a bit lengthy, are worth reading. Remember, this is the second-highest-ranking intelligence official in the United States, and he's expressing a point of view that is not at all at odds with President Bush.
What are his [Uribe's] principles? They’re really simple. Democracy leads to security. He’s trying to provide a climate for investment. And he’s trying to build the institutions that provide social cohesion. That leads to confidence in the electorate and why he has, of course, the 80 percent rating.

He does some other simple things that all of us know how to do but may fail to do. That is, he does town meetings throughout his country. He takes his National Security Council to meet in a different city each week. And so if you want to look for hands-on leadership that’s succeeding you need look no further than Colombia where they’re really taking on this question of narcotrafficking and terrorism and doing it in their own country. I think we need to support that and learn from it.

Now if you think about what I just said, I’ve just talked about something that’s not very different than what we’ve achieved with the surge in Iraq. We provided more troops, provided the security window, the ability to train up the Iraqis. We now have the CLCs, the concerned local citizens, taking back their own communities. What we hope is, of course, that investment and social cohesion will follow. So this is not a lesson that need be learned over and over again. It’s one we simply need to pay attention to and apply as we take responsibilities in different parts of the world.
I can't speak to the 80 percent approval rating, but this is as strong of an endorsement of Uribe as I've seen from any senior intelligence policy official. The Colombia-Ecuador-Venezuela standoff is, of course, still developing, and as I noted the other day, speculation about documents on a FARC laptop are fueling the fire. (Greg Palast has a rebuke of the documents, based on his review of some of them, in Spanish. )

Kerr also made a pitch to intelligence officials to open up more to the press and not be afraid to talk about what spies do for a living.
The last challenge I’d like to talk to you about tonight is the one I have no answer for, but it’s really this. How do we do these things in a way that helps people understand how we in the Intelligence Community operate? Not as political pawns, but as professionals and apolitical experts. How do we pull back the curtain just a little bit for a society that of course automatically distrusts and dislikes secrets without sacrificing our sources and methods?

In the U.S., for example, we talk a lot about trying to support moderate Muslim leaders and dispelling myths about U.S. intentions and goals, and quite frankly, Americans as people. We are not really that good at communicating here at home when it comes to perceptions about the Intelligence Community. No poll has been conducted in recent years asking people about their feelings on the Intelligence Community. We should probably be thankful for that, for the number might be depressingly low.

That’s not because people don’t appreciate what we do or the live we save or the tomorrows we make possible. It’s because they don’t understand what we do. That’s in effect entirely our fault. If you brought in the best PR firm in the nation to diagnose our problem, they would sum it up pretty simply. We’ve allowed our detractors to frame the national debate and cast us as the villains.

We in the Intelligence Community are not winning hearts and minds in the U.S.. We’re not even trying. That’s what bothers me most.

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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.


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Shane Harris | Friday, March 07, 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.

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Shane Harris | Friday, February 08, 2008

The American Forum: The Freedom of Press in a Post 9-11 Era

On the eve of the seventh anniversary of 9/11, I was privileged to join a panel of journalists and national security experts to discuss freedom of the press. The event was held at American University and broadcast on Washington's local NPR station, WAMU.

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Shane Harris | Monday, September 10, 2007

Fixing FISA

Just when you thought it was safe to go on vacation...

Congress and the administration have been busy bees the past week, haggling over modifications to the Foreign Intelligence Surveillance Act. The new law effectively legalizes much of what the National Security Agency has been doing since 9/11 under the so-called Terrorist Surveillance Program. Intelligence agencies now can intercept communications from individuals outside the United States--including American citizens--without warrants. The significant element here is that now, the NSA and others don't have to stop surveillance and obtain a warrant when the target who is outisde the United States communicates with someone inside the United States. That's the big change. And while it's important to emphasize that the government cannot target someone inside the country without a warrant--the target has to be overseas--the new law significantly broadens intelligence-gathering powers in a number of important ways.

Perhaps the most significant, and so far least-reported aspect, is that the new law doesn't narrow these powers to collecting intelligence about terrorism. In fact, the words "terrorist" and "terrorism" never appear in the law at all. The operative term here is "foreign intelligence." This new law should be read not just in the context of counterterrorism, but as a broader modification of the government's eavesdropping and surveillance powers.

The story is still developing, and we'll likely have to wait a while to understand the new law's effects fully. But here are some quick pointers.

First, NPR's Talk of the Nation addressed the issue yesterday in a half-hour segment. I joined a panel of guests including Sen. Bob Casey (D-Penn.), who voted for the new surveillance law, and Rep. Anna Eshoo (D-Calif.), who voted against it. Diane Rehm is also devoting her show this morning to the topic.

James Risen also had a piece in yesterday's New York Times that looks at how the law broadens the intelligence agencies' powers. This really got under the White House's skin--recall that Risen was one of two reporters who revealed the NSA's warrantless surveillance in December 2005--and yesterday the press office issued a rebuttal. Note that the White House doesn't say Risen's story is wrong, and that he does point out that the new law doesn't allow warrantless surveillance of a target inside the United States.

One larger story here is how and why the Democrats acceded to much of what the administration was asking for with regards to "updating" FISA. Part of the explanation is pure math--Nancy Pelosi knew that the Dems didn't have to votes to defeat the bill. But there is much to learn here about how the Democrats view themselves as a majority party on national security issues.

It's also important to note that many credible experts are arguing this new law does not significantly enhance the government's surveillance powers. We will hear a lot of debate on that point in the coming weeks, and it will frame the discussion when this new law comes up for reauthorization in six months.

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Shane Harris | Tuesday, August 07, 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.

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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.

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Shane Harris | Friday, July 27, 2007

Senators ask for full report on runaway TB patient

Sens. Joe Lieberman (D-Conn.), Susan Collins (R-Maine), and Hillary Clinton (D-N.Y.) have asked the Government Accountability Office for a detailed report on the case of Andrew Speaker, the Georgia man who was able to slip back into the United States, through Canada, even though federal health and security officials thought he was infected with an extremely drug-resistant strain of tuberculosis.

Lieberman, who chairs the Senate committee overseeing the Homeland Security Department, and his colleagues sent a letter yesterday to GAO chief David Walker, asking for a "thorough chronological account of the significant events and communications that occurred..." The incident "raises questions not only about events that transpired...but in the federal government’s overall approach to safeguarding our nation from public health threats before they reach our borders," the Senators wrote.

Speaker's case also raised serious questions about how the federal government has adapted to the specific nature of terrorists threats--namely, that terrorists do not behave rationally and frequently engage in unpredictable behavior. Speaker was no terrorist--and as it turns out, he had a less-serious form of TB than previously thought--but many of his evasive actions, to include entering the United States through Canada in an apparent attempt to avoid detection by U.S. authorities, shed a light on the government's terrorism responses. At many points in the tale, officials seemed to think that Speaker would behave rationally and not try to slip past them.

The full text of the senators letter follows:

July 24, 2007

The Honorable David Walker, Comptroller General
U.S. Government Accountability Office
441 G Street, NW
Washington, DC 20548

Dear Mr. Walker,

The recent case involving Andrew Speaker’s putative extensively drug-resistant tuberculosis (XDR-TB) has exposed a disturbing picture of the federal government’s ability to respond to a known public health incident and protect our homeland security. Thankfully it appears unlikely that this incident has resulted in the infection of more individuals with TB, but we must determine exactly what went wrong and do all that we can to ensure this does not happen again. The miscommunication, insufficient coordination and the ultimate response on the part of the agencies involved are troubling.

We, like many others, are concerned by the public health threat posed by both XDR-TB and multidrug-resistant tuberculosis (MDR-TB), and we believe the events of the past few weeks highlight the lack of preparedness on the part of our government in responding to a public health incident. Although both XDR-TB and MDR-TB make up less than 2% of the over 13,000 cases of tuberculosis reported in the United States on an annual basis, they present a grave public health threat. In addition to the individual threat that is posed by drug-resistant TB, this incident goes to the heart of our nation’s response to serious public health threats.

Mr. Speaker’s ability to cross our borders raises questions not only about events that transpired at that inland port but in the federal government’s overall approach to safeguarding our nation from public health threats before they reach our borders.

We should never again have a situation where delays and failures in communication between the federal government, other domestic public health officials and relevant commercial entities lead to needless exposure and risk. We need to assure the American people that our government can respond in a coordinated manner to these types of public health incidents. This incident should serve as a wake-up call that we need to establish and exercise effective plans to deal with the travel of known public health threats.

To help us better understand this incident, we would like GAO to (1) review and describe the sequence of events, establishing a thorough chronological account of the significant events and communications that occurred, and (2) assess the sequence to answer the following questions:

* To what extent did responsible federal agencies and other key organizations--including CDC, DHS, DOT, and relevant state and local health departments, international health organizations, foreign governments, and airlines--have plans, protocols, agreements, and processes in place to provide for effective coordination and information sharing and for prompt notification and response to the incident?
* To what extent were these followed?
* What information systems, databases, and networks were used in responding to this incident? To what extent did they provide needed information in a timely manner?
* What lessons learned did the incident reveal about the systems, processes, and protocols used to respond and how are agencies integrating these lessons learned to prevent future such incidents? What quarantine protocols or procedures are applicable to similar incidents? How are agencies safeguarding civil liberties when implementing changes?

As you proceed with this study, we ask that GAO apprise us of any external impairment that could potentially delay its completion in a timely manner. If you have any questions regarding this request, please contact us or our staff.

Sincerely,

Joseph I. Lieberman
United States Senator

Susan M. Collins
United States Senator

Hillary Rodham Clinton
United States Senator

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Shane Harris | Wednesday, July 25, 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.

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Shane Harris | Tuesday, July 24, 2007

UPDATE: US could strike "actionable targets" in Pakistan

White House spokesman Tony Snow told reporters this morning that President Bush has not ruled out military action in Pakistan's tribal areas against Taliban and Al Qaeda forces. Aboard Air Force One, Snow said, "We never rule out any options, including striking actionable targets." By actionable targets, Snow presumably means individuals or Al Qaeda holdouts that the United States knows about and can hit.

The full text of the exchange with a reporter follows:

Q Can I change the subject to Pakistan? Does the President have full confidence in Musharraf, particularly given the violence there from the Islamic --

MR. SNOW: Well, I think -- look, President Musharraf has put his life on the line and has been a very important ally in the war on terror. It's also clear that Taliban and al Qaeda, in the northwest territories and the federally administered tribal areas, have begun to put on operations that threaten the government of Pakistan itself, which is why President Musharraf, having tried one approach, in terms of dealing with the tribal leaders, is now going to have to be more aggressive and is being more aggressive moving forces into the region to deal with the security problems there.

Q Does the President rule out any U.S. military activity in Pakistan?

MR. SNOW: We never rule out any options, including striking actionable targets.

When asked, "Would the President seek Musharraf's permission to strike an actionable [target]?" Snow refused to say one way or the other. "Those are matters that are best not discussed publicly," he said.

This represents an increase in the U.S. pressure on Musharraf--which was already considerable--and effectively puts him on notice directly from the White House: If Musharraf can't handle the Al Qaeda problem, the United States will.

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Shane Harris | Thursday, July 19, 2007

Message to Mush: We're coming.

Since the release of the new intelligence estimate on Al Qaeda Tuesday, the one that concluded the terrorist group has revitalized itself in the lawless hinterlands of Pakistan, intelligence analysts I talk to have been wondering why the administration chose to release the NIE now. Certainly the White House understood that its critics--and some of its supporters--would seize on the NIE's key judgement that Al Qaeda is stronger today and is poised to attack the United States as a repudiation of the president's war strategy, namely, that we should fight terrorists in Iraq so they don't attack us at home.

A nascent and evolving theory is that the administration is signaling now, to Pakistani President Pervez Musharraf and the world, that the United States is more prepared than it has been in years to send American forces into Pakistan's lawless tribal areas to do what Musharraf either cannot or will not--rout the resurgent Al Qaeda.

Consider some of the key plot points that have led to the current moment in the Pakistan narrative. In February, Defense Secretary Robert Gates made a surprise visit to Pakistan, ostensibly to ease the "war of words" between that country and Afghanistan over what to do with the troubled tribal areas. But Gates was also there to deliver a message to Musharraf--you need to do more to fix this problem.

About two weeks later, Vice President Dick Cheney flew to Islamabad to meet with Musharraf, taking with him the CIA's deputy director, Stephen Kappes, an seasoned spy and longtime Asia hand who had served in Pakistan. This was not a cordial call. Musharraf's intelligence services were, and still are, in shambles. Officials don't know who is loyal to Musharraf and who is loyal to jihadits in Pakistan, and this limits their effectiveness. Musharraf clearly lacks the human intelligence to get close to Al Qaeda without seeing his own troops slaughtered. So, one has to conclude that Kappes was there to provide the Pakistani president with more than moral support. The CIA is giving him intelligence, likely helping him understand who in his own country is trying to kill him, and to help Musharraf deal with the tribal areas. (Apparently this strategy hasn't been terribly effective, if the intelligence community's own judgment is that Al Qaeda is strong again.)

At the same time Cheney and Kappes were meeting with Musharraf, senior intelligence officials were briefing reporters on the growing threat of Al Qaeda in Pakistan, telling them that the organization had replenished its middle ranks. Intelligence indicated that the foiled British planes bombing plot the previous year had an operational link to the resurgent group, they said.

Fast forward to this month. The New York Times reported that, in 2005, the Pentagon called off a clandestine U.S. strike in the tribal areas aimed at capturing Al Qaeda officials. Then Defense Secretary Donald Rumsfeld worried that the strike--which apparently had ballooned into a full-fledged invasion when military planners demanded security cover--would jeopardize U.S.-Pakistan relations. But in leaking this story two years later, the message to Musharraf from the Pentagon and the intelligence community was clear: We hesitated then, we won't now.

That brings us to this week's NIE, which put the official stamp on what we've known for months. A few days before its release, the intelligence community's top analyst publicly briefed members of Congress on the substance of the Pakistan problem.

Taken together, this build-up in U.S. anxiety--first expressed in surprise visits by top officials, now playing out in congressional testimony and public intelligence documents--signals that the Bush administration is dispensing with its light-touch strategy. It was that approach that kept thousands of combat troops from descending into the tribal areas in 2005. This has been replaced by tough public rhetoric and an undercurrent of hostility.

One has to wonder if the administration thinks the time for words has past. Is the United States moving towards its own military solution to Al Qaeda in Pakistan? The administration has stayed off that course for fear it would so badly destabilize Musharraf that he would lose his grip on power, with disastrous consequences for American interests. Well, the country appears to be sliding into instability, so perhaps one objection has gone away. But if Al Qaeda really has re-charged its batteries, and is more capable of striking out from Pakistan today than it has been in years--which is now the official line--then the administration might think it has no choice but to strike, if Musharraf won't.

It sounds implausible given the administration's cautious strategy to date. But consider what would happen if an Al Qaeda cell linked to Pakistan mounts a devastating attack in the United States. The United States would respond with full force, a la Afghanistan in 2002. Is the administration prepared to wait for that moment? I think that you can read between lines of the past several months and conclude, "Probably not."

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Shane Harris | Thursday, July 19, 2007

Intelligence Estimate: No new news...but one intriguing message

There are no real surprises in the unclassified "key judgments" of a new National Intelligence Estimate on terrorism, out this morning. Most of the important assessments of the 16 intelligence agencies have already leaked out or were highlighted in other forums by senior officials in recent months.
We judge the US Homeland will face a persistent and evolving terrorist threat over the next three years. The main threat comes from Islamic terrorist groups and cells, especially al-Qaida, driven by their undiminished intent to attack the Homeland and a continued effort by these terrorist groups to adapt and improve their capabilities.
Again, no surprises. The estimate does point out, echoing testimony by the country's top intelligence analyst last week, that Al Qaeda has "protected or regenerated key elements of hits Homeland attack capability, including: a safehaven in the Pakistan Federally Administered Tribal Areas (FATA)..."

In all, the one-and-a-half pages of unclassified nuggets aren't any more specific than what intelligence officials have put out for public consumption in the past year.

But there was one tantalizing bit at the end. The estimate seemed to say that the intelligence agencies need to better position themselves to counter the Internet as a tool for terrorism. In a section devoted to "technological advances" (read: the Internet, communications technologies, etc.) that continue to let "even small numbers of alienated people find and connect with one another, the authors drop this paragraph:
The ability to detect broader and more diverse terrorist plotting in this environment
will challenge current US defensive efforts and the tools we use to detect and disrupt
plots. It will also require greater understanding of how suspect activities at the local
level relate to strategic threat information and how best to identify indicators of
terrorist activity in the midst of legitimate interactions.
Let me read between the lines here a bit. "The ability to detect broader and more diverse terrorist plotting in this environment..." Here, they're talking about picking up on the signals of an attack--online chatter, rhetoric on jihadi Web sites, but also message traffic, probably money transfers. We've known for a long time that the intelligence agencies focus on the Web and online transactions to detect terrorist patterns.

But to the second point, this "will challenge current US defensive efforts and the tools we use to detect and disrupt plots;" that strikes me as a pretty candid admission. It's not like the intelligence agencies are saying, "We can't detect plotting on the Internet," but they're clearly pointing out this is an area of concern, and one that's going to keep putting counterterrorism specialists through their paces.

In light of this challenge, the agencies will need "greater understanding of how suspect activities at the local level relate to strategic threat information." This strikes me as a clear reference to the use of fusion centers, which are supposed to marry local intelligence with the global threat picture. This could be seen as a shot at the Homeland Security Department. Theoretically, it's DHS' job to put those two pieces together--local and global--but it has never really worked out that way. Most of this integration goes on at the National Counterterrorism Center, and the intelligence agencies hold sway there. The fusion centers themselves, while nominally under DHS' purview, are, in my experience, FBI-led affairs, with strong ties to the Office of the Director of National Intelligence. It's not clear whether this part of the estimate could be read as a move to underscore that this intelligence fusion is really the intelligence community's job, or as a signal to DHS that they need to step into this role more forcefully. I have to conclude, though, based on my reporting, that it's the former. This is a clear signal that the intelligence community sees fusion centers, and in the integration of local, national, and global threat reporting, as a vital part of domestic security.

Finally, the estimate says the intelligence agencies must understand "how best to identify indicators of terrorist activity in the midst of legitimate interactions." That's the false-positive, false-negative challenge in a nut shell. How do you scan all this activity--whether online or in the physical world--and determine what is and isn't suspicious? This is an area of particular interest for me, and I've been writing about it for years. I think it's most interesting that, in an NIE devoted to terrorist threats to the Untied States, officials chose to point out this challenge. Clearly, it weighs heavily on their minds.

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Shane Harris | Tuesday, July 17, 2007

The Terrorism Enhancement: The story behind the story

I stumbled onto the terrorism enhancement story several months ago while reporting on another one: the National Security Agency's terrorist surveillance program. I learned about a trial of so-called "eco-terrorists" in Eugene, Oregon, part of the FBI's Operation Backfire against the Animal Liberation Front and the Earth Liberation Front. After lawyers for the defendants for Daniel McGowan, whom I write about in the lead of my story, and his fellow defendants learned that the NSA was monitoring terrorist communications inside the United States without warrants, their lawyers wanted to know if the government had intercepted any of their clients' information. Theoretically, if the government had used warranties wiretaps to secure their indictments--"fruit of the poisonous tree"--it could jeopardize the case. Prosecutors insisted they hadn't used warrantless surveillance information, and for a time it seemed that the government would have to prove that to the judge. Fast-forwarding a bit, the matter ultimately became moot when defendants struck a plea bargain.

It seemed like the NSA angle wouldn't pan out. But something else intrigued me. I learned that the prosecutors were pursuing a "terrorism enhancement" to the defendants' sentences. I've been covering counterterrorism for six years, but I had never heard of this law, which is contained in the same part of the the U.S. Sentencing Guidelines that covers hate crimes and other "victim-related adjustments."

Why was the government pursuing a terrorism enhancement against environmental activists? And who else had they sought it against? That question led me into a months-long investigation that culminated in my current feature story.

Just figuring out how many times the government had sought the enhancement proved impossible--the U.S. Attorneys Office doesn't track that figure. But I was able to determine that judges have applied the enhancement at least 57 times in the past eight years. I studied more than half those cases--35--and learned that prosecutors sought the enhancement more often against domestic defendants, as opposed to members of international terrorist groups.

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Shane Harris | Friday, July 13, 2007

Top intel analyst: Pakistan new home base for Al Qaeda

Tom Fingar, the deputy director of national intelligence for analysis, is delivering a "global security assessment" to the House Armed Services Committee today. In his prepared remarks, just released, Fingar singles out Pakistan as the current home base for Al Qaeda, which he calls “the terrorist organization that poses the greatest threats to U.S. interests, including to the homeland.”

We have captured or killed numerous senior al-Qaida operatives, but we also have seen that al-Qaida’s core elements are resilient. They continue to plot attacks against our Homeland and other targets with the objective of inflicting mass casualties. They continue to maintain active connections and relationships that radiate outward from their leaders hiding in Pakistan to affiliates throughout the Middle East, North and East Africa, and Europe.

Fingar’s remarks echo the assessment senior intelligence officials have put out—on background with journalists—in the past few months: Al Qaeda has re-grouped, with a new cadre of middle and senior management, in the tribal areas of Pakistan. The foiled plot to blow up multiple passenger jets flying from the U.K. to the U.S. last year was linked back to Al Qaeda leaders in Pakistan, intelligence officials have said.

The political ramifications of a resurgent Al Qaeda in Pakistan are huge for the Bush administration. One need only imagine the political price the president would have paid had Al Qaeda succeeded in its attempts to kill thousands of airline passengers , and if the brain trust for that plot were found to have been hiding out in Pakistan, with the full knowledge of the White House and our intelligence service. The planes bombing plot was designed to rival, if not exceed, the 9/11 attacks, at least in terms of human casualties.

In his prepared remarks, Fingar added, rather ominously, that “Pakistan, despite its ongoing efforts [to crack down in Islamic militants], continues to face terrorism’s many challenges, while that country also raises other concerns for us.” He also said Pakistan can expect harder times to come:

With tribal opposition to the US military presence in Afghanistan and Iraq widespread and elections expected later this year, the situation will become even more challenging—for President Musharraf and for the US.

• Moreover, democracy has not been fully restored since the Army took power in 1999 and Musharraf’s suspension of Pakistan’s Chief Justice in March has brought thousands of protesters into the streets and increased public demand for a fully democratic system.

It’s important to remember that, last February, Vice President Cheney made an unannounced visit to Islamabad to show the United States’ displeasure with Musharraf’s apparently deficient efforts to squelch the Al Qaeda resurgence. Who did Cheney take with him? The CIA’s No. 2, Steve Kappes, a beloved career operations officer who has worked in Pakistan and knows the Middle East intimately. Undoubtedly, along with the United States’ insistence that Pakistan do more was an offer to help them do just that, through increased participation with our clandestine service.

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Shane Harris | Wednesday, July 11, 2007














Shane Harris
Intelligence and Homeland Security Correspondent, National Journal

Contact: E-mail

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