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Intel Officials Make Their Case

by Shane Harris
Wednesday, November 12, 2008

Senior officials are making their case that the two Mikes--McConnell and Hayden--should stay at the helm of the intelligence community.

Labels: Director of National Intelligence, Intelligence, Management, Politics, Transition

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Intelligence memo details transition process

by Shane Harris
Thursday, November 06, 2008

National Journal has obtained a letter from intelligence director Mike McConnell, offering some new details on how the transition of the intelligence services will proceed. It looks like officials will be working more closely with team Obama than past incoming administrations. And until recently, it appears that the Vice President Elect, Joe Biden, opted not to receive any classified intelligence briefings from the current administration.

Labels: Director of National Intelligence, Management, Politics, Transition

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A Matter of Opinions

by Shane Harris
Friday, October 31, 2008

Somewhere on the fifth floor of an immense federal office building in downtown Washington is a filing cabinet, or perhaps a computer hard drive, that holds a set of documents that the next president and his lawyers will want to read very, very carefully. Read the story here in National Journal.

Labels: Foreign Intelligence Surveillance Act, Intelligence, Law, Politics, Transition

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Surveillance Standoff

by Shane Harris
Friday, April 04, 2008

In the old days, everyone was linked to a lug nut, and Jim Kallstrom liked it that way.

It was 1985, a simpler time for a cop like Kallstrom, who was in charge of setting telephone wiretaps on suspected drug dealers and mobsters for the FBI's New York City field office. In New York, Kallstrom's cases were often won on the basis of incriminating evidence surreptitiously snatched from the mouths of criminal defendants through their phone lines. With a mere 203,000 Americans using mobile phones, people were still tied to the ground, and that gave Kallstrom's world a certain comforting order.

On any given day, he could stand on a street corner in Manhattan, gaze up at an apartment building with its neat rows and columns of units stacked atop each other, and know that inside each one there was a telephone, tethered by thin copper wire to a single point, sometimes several miles away. In his mind's eye, Kallstrom could have imagined shrinking himself to the size of an electron and traveling over the phone line, down to the bottom of the building, then shooting beneath the streets, until he ended up in the basement of the telephone company's switching station. There, the wire emerged, pegged to a rack by a single copper lug nut. Acres of racks lined the walls, each holding rows and columns of lug nuts and their wires, neatly stacked atop each other -- the city of New York in analog miniature.

With a warrant in hand, Kallstrom could tell the technicians at the phone office, with whom he had become friendly over the years, "Go up on RR326." The tech would walk to the rack, find the wire, and clamp on a listening device. Instantly, Kallstrom became an invisible interloper.
FBI agents and federal prosecutors depended on these legal wiretaps to penetrate drug cartels, incriminate money launderers, and spy on mob families. And they needed to be absolutely certain that the line they were on belonged to the suspected dealer, or launderer, or capo named in the court-approved warrant. Not the guy in the apartment next door. Not someone down the block. This guy. This phone. RR326. Lest the agents violate a judge's order, and perhaps land themselves in jail, this had to be the very same line that snaked back through the subterranean maze of Manhattan, through all those blocks of concrete caverns, back to that certain apartment building, up through the walls and out of the jack and into the phone that was in the hand and next to the mouth of Kallstrom's target. It was, by design and necessity, a neat, specific system.

And then it all went sideways.

Kallstrom's friends in the phone company put him on notice in 1985: Over the next few years, those racks and stacks of wires and lug nuts would be swept into the technological dustbin. The telephone network was going digital. Technicians would no longer stand at a rack; they would sit at a keyboard. In some parts of the country that had already made the change, phone calls were traveling as a stream of 1's and 0's. Thousands of lines commingled in a single computer. When New York went digital, the phone techs told Kallstrom, they would no longer be able to tap him directly into RR326. In fact, they couldn't even tell him for sure where RR326 resided in this new engineering matrix.

At the same time that the phone companies were preparing for the transition to digital, the use of cellphones -- which were inherently harder to tap because they used phone lines differently than analog devices -- mushroomed. From 1985 to '86, the number of registered mobile-phone subscribers in the United States doubled to 500,000. Within two years after that, the number climbed to 1.6 million. By the end of the decade, the cellphone universe had skyrocketed past 4 million.

Organized crime was an early adopter of the mobile phone. In a communications technique presaging that of Islamic terrorists today, members of the Colombian Cali drug cartel operating in New York would briefly use a phone, toss it, and get a new one. To tap a mobile device, technicians had to install listening equipment on the new version of a lug nut -- an "electronic port." But in most switching stations in New York, there were only half a dozen or so ports available at any one time. Federal prosecutors and agents had to stand in line at phone company offices and fight with each other over whose investigation should take priority. Some prosecutors threatened to haul company employees into court on contempt charges so they could explain to a judge why the phone company was unwilling to execute a wiretap order.

Electronic surveillance, once such a dependable, relatively easy craft, was becoming inordinately difficult, Kallstrom thought. The phone companies, whose annual revenues from mobile subscriptions were cresting over $2 billion in the late 1980s, showed little willingness to make the FBI's life easier. As the 1990s approached, with the promise of more digitization and more mobility, Kallstrom called his bosses in Washington: "If we don't do something, we'll be out of the wiretapping business."

A Battle Begins
Kallstrom may have been the first to alert the FBI and the Justice Department to this new reality. The digital revolution generated a constant tension that exists to this day, a push and pull between the federal government in one camp and technology corporations and civil-liberties activists in the other to control the development of the global communications system, and so the balance of power in the Information Age.

This struggle's latest manifestation is the intensely politicized effort to rewrite the Foreign Intelligence Surveillance Act. At issue is nothing less than the government's authority to broadly monitor communications networks to spot terrorists and other national security threats. The Bush administration finds itself across the battle lines from many of the same groups that more than a decade ago argued that the government was already extending its reach too far into personal conversations in the name of pursuing criminals.

While FISA governs wiretapping for intelligence-gathering purposes, as distinct from law enforcement, surveillance in both worlds follows the same essential philosophy -- the best evidence in a court of law or in an intelligence operation is one's own words. Today's dispute is not very different from the one that occurred during the dawn of digitization in the 1990s. Indeed, both are part and parcel of the same long-running debate.

No one should believe that real-time government surveillance of the communications network is an idea born of the 9/11 attacks or that it results solely from the Bush administration's aggrandizing of executive power. The legal arguments that the government has asserted to support increased surveillance of digital space were first put forth in 1994, under a Democratic president, and they had little to do with the threat of Islamic extremism.

Nor should anyone mistake the roots of the vociferous opposition to today's wiretapping from civil libertarians and privacy advocates. Many of these groups and their allies have been battling to restrict the government's use of new, potentially invasive technologies for a generation. The Bush White House is only their latest adversary, albeit the most formidable. These activists and their allies in the business world have been motivated by different but mutually supportive goals: to extend constitutional safeguards to the digital realm, and to keep the government from suffocating technological development with burdensome surveillance laws. Some in those ranks would have liked, and indeed tried, to make the digital network a wiretap-free zone.

But despite the occasionally extreme positions and deeply held convictions of all of these players, the most important laws governing wiretapping, electronic surveillance, and privacy have been the product of negotiation, of people gathering in a room, sitting at a table, and talking -- sometimes screaming -- until they reached a settlement. The current debate, however, is missing that crucial spirit. Whereas before, adversaries trusted each other enough at a basic level to make deals, however temporary, today's opposing sides seem unwilling to compromise to pass new surveillance laws that the nation can live with. It's not entirely clear where or why minds turned so stubborn. But to understand today's political calcification, it helps to recall a simpler time.

The Art Of Compromise
Jerry Berman was a veteran of the privacy wars, seemingly born for the role of liberal, dogmatic activist. In the early 1950s, his father, a labor leader, was investigated by the House Un-American Activities Committee. A native of Hawaii, the younger Berman moved with his family to California, where he enrolled at the University of California (Berkeley). After earning his bachelor's and master's, and, in 1967, his law degree, Berman began lobbying for the American Civil Liberties Union. He became an authority on the intersection of national security and technology, schooled by the exposure of illegal FBI spying operations aimed at political organizations, war protesters, and leftist activists. In 1978, Berman helped to craft the Foreign Intelligence Surveillance Act, which set new restrictions on the government's domestic intelligence-gathering. He was present at the creation of several important pieces of surveillance legislation, and he helped secure individual privacy protections.

In playing his role, Berman didn't adhere to a hard-and-fast position but instead embraced his own brand of "principled pragmatism." By his logic, the interests of privacy and national security were not incompatible. If all sides -- government, industry, civil-liberties activists -- could find ways to "maximize the good and minimize the harm," as he liked to say, they could strike a satisfactory balance and create workable laws. This idea guided his work on FISA and other legislation, sometimes to the consternation of more-ideological activists who employed him to lobby Congress on their behalf.

Perhaps that was because principled pragmatism recognized an unsavory reality: In Washington, those who show up to play the game make the rules. Negotiation requires sacrifice. Sacrifice requires flexibility. Some people would rather break than bend. But compromise is how things get done, and Berman accepted it. As a colleague summarized Berman's general approach to lawmaking, "You can stand on your principle and get your ass handed to you, or you can engage in the process and get a better deal."

In the summer of 1994, the FBI and the Justice Department made a bold play to force the telecom carriers to help them conduct legal wiretaps. They put forth a proposal that would require the companies to build their networks so that law enforcement agents serving a warrant could access them in real time. The legality of wiretapping was not in question. The government wanted legal assurance that it could tap, at any time, and that the industry had an obligation under law to comply with the government's proper authority.

No more computer-related hassles, no more standing in line to plug into mobile-phone ports. Law enforcement agents, federal spymasters, and prosecutors wanted a comprehensive remedy to what they called the "digital telephony" problem. Their chief advocates were Kallstrom and Louis Freeh, the recently appointed FBI director, a former special agent and federal prosecutor who had used wiretaps to secure convictions in some of the most complicated organized-crime investigations in history. Freeh personally pushed for the new law, showing up unannounced in reluctant lawmakers' offices to press them for support and even sitting in on committee markups -- an unprecedented move for an FBI director -- to stare members down.

Clipper Chip
The 1994 proposal was only the latest in a series of government efforts to strengthen its control of the telecommunications network. In the late 1980s, Justice officials had gotten as far as placing language in an anti-crime bill that would have allowed the attorney general to set standards for telecommunications equipment, effectively making that federal official the network's architect-in-chief. (The bill did not pass.)

In 1993, Bill Clinton, in one of his first presidential directives, announced that engineers at the National Security Agency, the intelligence community's electronic surveillance arm, had developed a cutting-edge microcircuit, called the "Clipper" chip, to scramble telephone conversations. The administration intended to promote the installation of the Clipper technology in U.S. telephones, and planned to hold "in escrow" the digital keys to decrypt any conversation. In other words, the federal government would build the lock and keep the key, an idea that inspired a reaction somewhere between outrage and apoplexy among technologists and privacy advocates, who ultimately killed the idea.

In that atmosphere of hostility and skepticism, Berman went to work. Beginning in August 1994, he convened a series of meetings with senior law enforcement officials under the auspices of a privacy and security coalition he had formed with more than four dozen activist groups and technology companies -- including the biggest telecom provider of all, AT&T -- plus the U.S. Telephone Association, IBM, and software makers such as Microsoft. The goal was to resolve differences over the government's proposal to ensure federal access to telecommunications networks. Berman also brought in two powerful Democratic lawmakers and noted civil libertarians, Sen. Patrick Leahy of Vermont and then-Rep. Don Edwards, whose district included California's Silicon Valley. Everyone in the negotiating room had some familiarity with technology issues, and professional experience in law enforcement or Justice Department oversight.

The meetings featured intense, nitty-gritty debates over the technical aspects of the law. The FBI wanted guarantees that the telecom system would never mature beyond the reach of its wiretaps. Some companies saw this as heavy-handed regulation, and a number of telecom officials shared the activists' belief that the government was in fact after a permanent covert backdoor into the phone system. The negotiations helped to somewhat dampen the suspicions, however, and the talks went forward because no one in the room disagreed with the fundamental premise that the government had the right to wiretap.

But outside of the meetings, divisions festered among the interest groups. Berman represented the Electronic Frontier Foundation, which champions the public interest in the digital realm, but its board couldn't decide whether compromise was prudent or perilous. Berman felt he had to persuade his colleagues, in another series of heated meetings, to work in the middle. To him, that meant that the legislative negotiations would follow an inviolate principle: We will only craft solutions to known problems. No writing of laws aimed at encompassing future problems. If the FBI has difficultly accessing the public telephone network, then the law will address only that public telephone network.

In addition to identifying a philosophical guideline, this approach served a more strategic goal -- to keep the FBI's hands off the Internet, which was so new in 1994 as to be practically notional. Internet service providers such as America Online and Prodigy had only a handful of subscribers, and the first Web browser had been released that year, in a beta test version. Still, Berman and others knew that the FBI would never willingly agree to stay off the information superhighway, because Internet-based information held tremendous potential value for law enforcement.

During one meeting, David Johnson, a lawyer who had helped to craft the Electronic Communications Privacy Act in 1986, held up a glass jar full of rocks and asked, "How many of you would say this jar is full?" Most people agreed that it was. Johnson took a fistful of pebbles and dropped them into the jar. They tinkled down through the rocks, finding resting places in the empty spaces. Then he poured sand into the jar. As it cascaded into the empty spaces, Johnson told the onlookers that the sand was like the unseen, seemingly insignificant "transactional data" that traveled on the Internet. Transactional data includes the routing information for a text-based message -- where it comes from, where it goes, and what path it follows -- and the series of digits that make up an Internet address. This information would someday be of enormous value to the government, he said, just as phone call records, as opposed to actual conversations, already were. The transactional data were small but meaningful -- like the tiny grains of sand that kept filling the volume of the jar.

CALEA
Johnson's vivid illustration convinced many of the participants that the new law mustn't extend too far. Again, the issue wasn't whether law enforcement had a right to information but how much power the government should have over the means to get it. Leahy and Edwards, who formally introduced the legislation shortly thereafter, declared that it would apply solely to the public telephone network. The law specifically exempted "information services," which the parties agreed included Internet companies and electronic-messaging technologies.

The Communications Assistance for Law Enforcement Act passed in the closing days of the 103rd Congress, two weeks before Republicans won control of both chambers in November 1994. CALEA (pronounced kuhLEEuh) would let the industry set its own standards to meet the Justice Department's needs. The department could list its surveillance requirements, but the act let companies decide how to build their equipment. Justice won the right to petition the Federal Communications Commission if its officials felt that the companies weren't fulfilling their obligations. But civil-liberties groups also secured the right to challenge the government's requirements in court.

It was a true compromise, hard won but workable. For Berman, principled pragmatism had carried the day. For others, however, the compromise had given away too much.

The board of the Electronic Frontier Foundation had seen the proverbial legislative sausage being made and found it distasteful. Even though the directors had agreed to every aspect of the law, which Berman explained to them, within weeks after its passage he left the EFF and formed his own outfit, the Center for Democracy and Technology, to continue his brand of lobbying. The EFF pulled up stakes in Washington the following year and moved to San Francisco, where it continues to play a leading role in supporting lawsuits against telecommunications companies -- most notably AT&T, its former ally -- for their role in assisting the government with warrantless wiretapping after the 9/11 attacks.

At the time, Berman confided to Kallstrom, whom he thought had always acted in good faith for the FBI, "My work on CALEA got me fired."

Kallstrom was apparently happy to see his more idealistic opponents leave town. "You didn't get fired, Jerry," he replied. "You got promoted."

Making Demands
Had the FBI and the Justice Department stopped there, had the government settled for secure access to phone networks, the history of Internet privacy and civil liberties might have turned out differently. But just weeks after President Clinton signed CALEA in January 1995, conflict erupted between the government and the phone carriers over the kind of network access the law provided. The raft of compromise that had carried the deal sprung a leak.

FBI officials knew in 1994 that they were making a mistake by leaving cyberspace out of CALEA. They understood the Internet's potential as a communications device and an intelligence tool -- that is, after all, why CALEA's authors exempted "information services."

"Did we know that it was idiotic to carve that out?" Kallstrom asks now. "Yes, we did." Criminals have always been among the first to embrace new technology. It was foolish to think that they wouldn't turn to the Internet for any number of nefarious gambits. But, Kallstrom says, government officials opted "to fight another day" over Internet access. Privacy advocates were dragging their feet in the negotiations. Delay would invite more debate, probably more hearings, and possibly a less favorable outcome. The political decision was made: "Let's take what we can get here."

In early 1995, the Justice Department issued its list of requirements for wiretapping, known as the punch list. Not surprisingly, many telecom executives and their attorneys viewed the demands as unreasonable. Al Gidari, a lawyer representing the wireless industry, was among the first to see the FBI's requirements, during the initial meeting to develop standards for CALEA, which was held that spring in Vancouver, British Columbia. The Justice Department's wish list, he said, amounted to "the Cadillac of wiretaps."

"Everything they could ever think of to gold plate and put on the Cadillac was in that document," Gidari recalls. Meeting its expectations represented "an exponential increase in complexity, not a linear increase.... They were very dictatorial ... technical requirements -- the very thing that Congress said it wasn't up to [the FBI] to figure out."

The standards meeting was tense and awkward, and the sides were unevenly matched. Gidari recalls a dozen or more FBI agents, in neat blue suits, all buttoned down and looking ready to roll over anyone who stood in their way. Arrayed on the opposite side of the table was a group of laid-back and casually dressed network engineers from all the major telecom equipment manufacturers and carriers that was tasked with the unenviable job of telling the bureau that the industry planned to build a much less complex system. It wasn't what the FBI agents wanted to hear.

Over the next few years, the Justice Department continued to seek increasingly sophisticated surveillance capabilities, including real-time geographical tracking of mobile phones; the ability to monitor all parties in a conference call regardless of whether they are on hold or participating; and "dialed digit extraction," a record of any numbers that a subject under surveillance punched in during a call, such as a credit card or bank account number. The government got a lot of what it wanted, but not all.

To be sure, criminals' use of new technologies helped drive the law enforcement demands. But telecom carriers worried that the cost of compliance was too high and that the FBI's technical requirements were illegally broad. CALEA, they argued, had forbidden the government from requiring specific system designs or technologies.

The FCC's Turn
Justice, frustrated by its inability to get all the demands on the punch list, finally asked the FCC to step in. In 1997, the Cellular Telecommunications Industry Association, which then represented mobile carriers, and the Center for Democracy and Technology complained to the commission that the negotiations had deadlocked because of "unreasonable demands by law enforcement for more surveillance features than either CALEA or the wiretap laws allow." The FCC, however, sided with the Justice Department on a host of requirements that privacy groups found overly broad. The tussle dragged on for two more years and ended up in the U.S. Court of Appeals for the District of Columbia Circuit, which overruled the FCC. After the commission took up matters again, it granted some of the FBI's requests, and the CALEA standards were amended.

When Justice Department officials reported to Congress on CALEA implementation in January 1998, no manufacturer of telecom equipment said that the FBI's demands were impossible to meet, but they did say that complying would be difficult and very expensive. (Although Congress had set aside $500 million to reimburse companies for retrofitting their networks, the law required the carriers to bear the cost of compliance on any equipment put in place after CALEA was enacted. Several experts believe that the final cost for compliance on telephone networks has been two to eight times the amount originally allotted.)

The level of government surveillance was so low at that time that some questioned why the FBI wanted such multifaceted access at all. In 1994, federal and state authorities were running 1,154 wiretaps nationwide, mostly for drug investigations, at an average cost of $50,000. The government was asking carriers to "design a nuclear rocket ship" for a rarely used tool, Gidari thought. "In [the FBI's] view, there was no limit to the expense the carrier should spare in order to save a life."

CALEA continued to evolve, shaped by the ongoing arguments over the terms of its birth. Activists and carriers thought that the FBI was reneging on its bargain, asking for more than the law allowed. The FBI believed that carriers were stalling when they failed to meet compliance deadlines. As all sides dug in, the meetings on implementation turned bitter. FBI and Justice officials slammed their hands on tables and screamed at carrier representatives, Gidari recalls. "You're unpatriotic! What do you want to do, help the criminals?"

The government asked those same questions after September 11, 2001. And this time, telecommunications carriers responded. Outside the normal FISA warrant process, which covers intelligence-gathering, carriers opened access to their networks, their customer call data, and their valuable transactional information -- the kind that CALEA had intended to exclude. President Bush and his administration believed that the extraordinary nature of the terrorist attacks demanded emergency actions that FISA couldn't accommodate, and the carriers answered the call from law enforcement and intelligence agencies. But government officials also seized on the post-9/11 mentality to change other surveillance laws and procedures, which they believed -- just as their predecessors did in 1994 -- were out of step with technology and reality. About three years after 9/11, officials set their sights on rewriting CALEA.

Claiming The Internet
In August 2004, in response to a petition by the Justice Department, the FBI, and the Drug Enforcement Administration, the FCC expanded CALEA to cover Internet communications, including voice calls and instant messages. The Electronic Frontier Foundation sued, along with industry, civil-liberties, and academic groups. In 2005, the Court of Appeals ruled 2-1 to defer to the FCC's reading of the law.

Many of those who had helped craft CALEA believed that the commission had misread the law and acted on a post-9/11 impulse to give the government more, not less, access to information. But to the FCC, new Internet technologies that operate a lot like telephones blurred the distinction between "information services" and the kinds of technology that CALEA was meant to cover.

After 9/11, law enforcement and intelligence agencies took a variety of measures, apart from wiretaps, to collect and mine potentially valuable information from the Internet. With the cooperation of telecom companies, government accumulated lots of transactional data -- including e-mail header information and lists of websites visited by targeted individuals -- to support counter-terrorism operations. Viewed solely as a reaction to the terrorist attacks of 2001, this kind of collection might seem extraordinary. But through the longer lens of history, the government's steady march into cyberspace is not surprising.

Law enforcement agencies have never suffered for lack of access to the phone network. Kallstrom recalls only a few instances in which agents were unable to execute a wiretap order because of new technology. But as digital, mobile technology has proliferated, the copper lug nuts that Kallstrom remembers from the 1980s have disappeared. Today, state and federal agents spend most of their tap time on mobile devices. In 1994, most wiretaps, by far, targeted private residences. There were few taps on mobile devices. Ten years later, 88 percent of the 1,710 wiretaps were on mobile devices. Only 5 percent were on residential lines. Without CALEA, some experts believe that Kallstrom's initial fears would have come true and the federal government would have been shut out of the wiretapping business.

Jerry Berman never wanted that to happen. Although he cannot accept that the law that was meant to minimize the government's influence over the Internet is now being used to facilitate it, he is willing to negotiate on CALEA again, if that is what's necessary to satisfy all parties.
That willingness to talk extends to FISA, as well, and Berman's Center for Democracy and Technology has been actively involved in the current agitations over the law. But whenever he and his cohorts have extended the hand of compromise to Congress or the administration, he says, they have been disappointed. Any attempt to revamp FISA, or to clarify CALEA, "is impossible in the current climate," Berman says. "There is no sense that you could get the kind of negotiation we got in 1994."

FISA And CALEA
One has to wonder how strong that spirit of compromise really was in 1994, and whether it was already ebbing. If the FBI was willing to take what it could get on CALEA and go on to fight another day, did the government really "settle" at all? Literally weeks after CALEA was signed the Justice Department and the FBI came roaring back with new demands. What killed the penchant for negotiation? Was it the moderates' loss of power in both political parties after the 1994 Republican revolution? Was it the entrenchment of civil-liberties activists? Was it the Bush White House's extravagant interpretation of executive power? Was it 9/11?

Berman spends a lot of time pondering these questions and thinking about next moves. He divides his time between Washington, where he chairs his group's board of directors, and a home he built on the Cacapon River near Berkeley Springs, W.Va. "We just have people in bunkers now," Berman says ruefully.

The FISA debate is currently hung up on whether companies that assisted warrantless surveillance after 9/11 should have retroactive legal immunity for any laws they may have broken. CALEA has something to say about that, too. The law requires that carriers be able to deliver call identification information to the government remotely. According to Beryl Howell, Sen. Leahy's lead CALEA staffer, that provision was meant to keep government agents from sitting in the phone companies' offices to execute their wiretaps.

It is a basic tenet of wiretapping law, whether for intelligence or law enforcement, that the communications companies act as a buffer between their customers and the government, she says, and that telecom carriers must make their own determination whether official requests are, in fact, legal. That the companies would now assert, in defense of their cooperation, that the government determined that post-9/11 requests were legal, strikes Howell as outrageous.
If ever there was a time for the bare-knuckled negotiations of the past, it's now. It's not at all clear, though, who could play the role of Jerry Berman, the one to bring people into the room to scream and yell at each other and emerge feeling better for it -- and possibly even coming to a compromise. As things stand, Congress appears more likely to punt the FISA debate to the new administration, and has shown little interest in revisiting CALEA.

The constant tension that once kept this system in balance has reached a breaking point. There is no push and pull. Maybe the stakes are too high for compromise. But until that spirit returns, Berman says, "there will be no peace."

Published in National Journal

Labels: Foreign Intelligence Surveillance Act, Intelligence, Law, Politics, Technology, Terrorism

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The Other About-Face on Iran

by Shane Harris
Friday, December 14, 2007

In releasing a bombshell about Iran's nuclear program, intelligence director Mike McConnell reversed a vow of secrecy. But he probably had no choice.

"You will be disappointed," Mike McConnell, the director of national intelligence, told a gathering of journalists in Washington on November 13. U.S. spy agencies were putting the finishing touches on a National Intelligence Estimate about Iran's nuclear intentions and capabilities, which included new leads that the agencies had been vetting since spring. But departing from recent practice, McConnell said, "I do not intend to release unclassified key judgments" of the NIE, those heavily edited yet potentially telling morsels of analysis that might ultimately show how close the United States is to a war with Iran.

"We have probably done a thousand of these" NIEs, he said. "We have done unclassified key judgments for maybe three. So we created an expectation that we do this, because we did it previously." And that was a bad idea, McConnell said, with some passion.

For starters, even the "sanitized" version of an NIE could compromise vital sources and methods, he said, because the target of the estimate is, of course, going to read the document. Second, "I don't want to have a situation where the young analysts" -- whom McConnell guards with particular devotion because he was once one of them -- "are writing something because they know it's going to be a public debate or political debate. They should be writing it to call it as it is."

McConnell, whom a longtime colleague describes as having "not a political or manipulative bone in his body," also stated he would "make every effort" to prosecute anyone who leaked the NIE. Then, he vowed (twice) to resign if the intelligence was "cherry-picked in an inappropriate way" by government officials.

Things changed dramatically in the three weeks after McConnell's public denunciation of leaks and declassification. On December 3, McConnell and his aides reversed that decision and released the unclassified key judgments of the NIE on Iran. Try as McConnell might to keep the lid on the new estimate, his lieutenants were influenced by the political realities of intelligence these days.

"They thought it would leak and be distorted, and they thought they'd get ahead of that," said one former senior intelligence official close to the deliberations. "They decided it was better to put out a clean set of key judgments." Vice President Cheney went so far as to say that officials expected to lose control of some classified material. "There was a general belief -- that we all shared -- that it was important to put it out, that it was not likely to stay classified for long, anyway," Cheney told The Politico on December 5. "Everything leaks."

The leak-prevention strategy was a stark departure from the guidelines that McConnell had set out, both in November and a month earlier, when he issued this official policy: "The possibility that the [key judgments] or other positions of an estimate will be leaked is not a sufficient reason for preparing unclassified [key judgments]." In a briefing with reporters after the NIE was released, a senior intelligence official acknowledged that declassification "obviously represents a departure from [McConnell's] guidance."

The banner headline of the key judgments -- "that in fall 2003, Tehran halted its nuclear weapons program" -- put the intelligence community precisely where McConnell didn't want it to be: in the middle of a ferocious political and policy debate in which sources and methods of the intelligence on Iran, as well as the analysis, are being openly discussed, exposed, debated, and, yes, cherry-picked to suit a range of agendas. Indeed, even though the NIE does not say that Iran poses no nuclear threat, the key judgments on areas besides the weapons program have had to compete with the dramatic top-line assessment.

Because the new estimate upends its predecessor, made in 2005, and has undercut any nuclear-related pretext for a U.S. bombing of Iran, the political and ideological dispositions of the analysts who wrote the NIE are, predictably, under scrutiny. Within days of the key judgments' release, former Bush administration officials and neoconservative icons mounted a full-scale attack on McConnell's lieutenants, some of whom had long careers in the State Department and have, the critics contend, historically underestimated Iran.

These critics characterized the NIE as the lieutenants' way of cutting off Cheney and the president on their presumed path to war with Iran -- a contention that wasn't refuted by senior intelligence officials' repeated assertions that Iran's decision to stop its program in 2003 and to keep it shuttered resulted directly from international pressures and sanctions. Indeed, intelligence officials have been careful not to assert that the 2003 invasion of Iraq was the key motivator for Iran's change of plans. Whether McConnell's aides meant to pre-empt the White House or not, the conclusion is undeniable: The intelligence community is at odds with President Bush's forceful rhetoric on Iran.

Since the NIE was released, McConnell has been notably absent from the public fracas. His deputy, Donald Kerr, a veteran nuclear weapons expert, has given the intelligence community's only two on-the-record statements about the estimate. McConnell was out of the country when the key judgments were released.

Around Washington, rumors persist that McConnell threatened to resign over the issue. It's not clear, however, whether he staked his tenure on the NIE being released or withheld, or whether he saw any cherry-picking by the White House, but the gossip is one more measure of just how political the release of this document has become. Observers point out that in the month preceding the NIE, Bush warned that Iran's nuclear ambitions could lead to "World War III," and Cheney, four days later, gave a bellicose speech reminiscent of the run-up to war with Iraq over its weapons programs. The White House already knew by then, at a minimum, that the intelligence community was vetting potentially groundbreaking intelligence on Iran that could change the NIE.

Perhaps under pressure to back up their bold new claims on Iran, senior officials have gone further, giving on-background press interviews in which they catalog the streams of intelligence that led the analysts to change their nuclear conclusions -- purloined laptop computers loaded with weapons diagrams; notebooks and intercepted phone calls from high-ranking officials; and, as reported by the Los Angeles Times this week, a clandestine operation called "Brain Drain," in which the CIA helped mid- and top-level Iranian nuclear experts flee the country.

Unless officials are trying to affect the Iranian government's actions through a massive disinformation campaign, it would seem that the intelligence community has set aside McConnell's concerns about sources and methods. "I'm shocked by the level of public discussion," said a former senior intelligence official who worked on Iranian issues for many years, adding, "I don't see much good that comes from releasing NIEs."

Kerr has said that the release "was coordinated in discussion with senior policy makers," but that the intelligence community "took responsibility for what portions ... were to be declassified." Officials weighed "the importance of the information to open discussions about our national security" against protecting sources and methods, he said, and "felt it was important to release this information to ensure that an accurate presentation is available."

Still, only a dramatic turn of events would have led McConnell to abandon his policy of not making NIEs public, several former officials who know him said. One former high-ranking official involved in clandestine operations said that in more than 30 years in the intelligence business, he had never seen a key judgment change so dramatically so fast -- indicating that the new intelligence that officials picked up amounted to a veritable "smoking gun."

"Keep in mind, this thing had been built up, which is somewhat unusual for an NIE," said another former senior official, who has also worked on Capitol Hill. The document was months behind schedule, widely anticipated, and focused on one of the top foreign-policy issues of the moment. "I think this was an extraordinary circumstance," the former official said.

Expressing concern over the public airing of sources, a Senate staffer said that the NIE "has certainly been sucked into a political debate," and that McConnell is clearly concerned about the effect that the fallout might have on analysts. "For that, we will have to wait and see," the aide said. "I still think that he simply had no choice. There was no way this would stay secret, and he didn't want to be accused of trying to bury it. I think he held his nose and let it go."

Many intelligence professionals concur. And in the NIE's release, they see signs not of an outright insurrection against the Bush administration but of a reassertion by the intelligence community of its ability to influence policy -- public or otherwise. McConnell's team is hardly backing down in the face of the neocon onslaught. Last Saturday, Kerr shot back at the NIE's critics in an unusual and terse public statement. Labeled "In response to those questioning the analytic work and integrity of the United States intelligence community," Kerr's statement said that the agencies' "task ... is to produce objective, ground-truth analysis. We feel confident in our analytic tradecraft and resulting analysis in this estimate."

So there.

Published in National Journal.

Labels: Director of National Intelligence, Intelligence, Iran, Management, Politics

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Telecoms as Trojan Horses

by Shane Harris
Friday, December 07, 2007

The debate in Congress about whether to allow Americans to sue companies that participated in the National Security Agency's warrantless surveillance activities has little to do with punishing Big Telecom for its role in domestic spying. Rather, keeping alive an estimated 38 pending civil suits against AT&T, Verizon, and other companies has become congressional Democrats' best chance to hold the White House accountable for the controversial NSA program. The lawsuits also offer the hope of an official ruling on whether the program was ever legal, something that Congress has been unable to determine on its own.

House and Senate lawmakers recently proposed three different bills to amend the Foreign Intelligence Surveillance Act, known as FISA. The proposals set new rules on how the intelligence agencies monitor phone calls, e-mails, and other electronic communications, including those of U.S. citizens. Each of the bills tackles the issue of granting immunity to communications companies that participated in classified programs that were authorized by the president after the 9/11 attacks but were not overseen by a court until this year. The White House has threatened to veto any law that doesn't protect those companies, and granting them immunity would effectively end the lawsuits against them.

The plaintiffs, who are mostly private citizens and civil-liberties activists, have directed much ire and public scorn at the telecom companies for going along with the secret intelligence-gathering, but Democrats in Congress think the real target of litigation ought to be the Bush administration. Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., who has led the most aggressive inquiries into the NSA's warrantless activities, called the suits "perhaps the only avenue that exists for an outside review of the government's program, and an honest assessment of its legal arguments."

Even the most strident opponents of immunity see the lawsuits as a means to a political end. Last month, amid Judiciary Committee negotiations over immunity, Sen. Russell Feingold, D-Wis., declared that shutting down the suits "would likely prevent courts from ruling on the president's illegal warrantless wiretapping program." He emphasized, "This program was one of the worst abuses of executive power in our history, and the courts should be able to rule on it once and for all."

Most Senate Republicans support unconditional immunity -- and even the majority of Democrats are hardly on the opposite side of the issue. Indeed, many Democrats have recently expressed no small amount of sympathy for the companies, which they think acted in good faith, believing that they were responding to urgent, and legal, requests from the president to help prevent another act of terrorism. Civil damages against the companies could conceivably reach into the tens of billions of dollars.

Democratic senators understand that private-sector assistance is an indispensable part of intelligence-gathering, and they don't want to see the telecoms put out of business because of their role in it. But they're also not prepared to let the telecoms off the hook completely.

As a Judiciary Committee staffer told National Journal, Leahy "doesn't support full, retroactive immunity but also doesn't want to see these companies bankrupted due to the administration's actions."

Echoing her colleagues on the Judiciary and Select Intelligence committees, Sen. Dianne Feinstein, D-Calif., has said that the telecommunications companies shouldn't be "held hostage to costly litigation in what is essentially a complaint about administration activities." The chairman of the Intelligence panel, Sen. Jay Rockefeller IV, D-W.Va., has noted, "The assistance of companies is invaluable in carrying out programs that provide for our national security and protect American lives. It is important that this assistance continue and not be extinguished under a deluge of lawsuits."

Thus, immunity has come down to a matter of degree. Last month, the House passed a FISA bill without corporate protections, but House lawmakers have signaled that they are open to compromise with the Senate's version, if the latter chamber can come to some consensus that doesn't allow blanket immunity. Senators are haggling over whether something less than immunity -- "accountability" for the companies, some have called it -- would suffice, offering a way to shield them from potentially devastating money damages and yet still expose the administration's culpability in court.

That the immunity question has become the flash point in the FISA debate took many of the key players by surprise. Leahy said last month that no one thought that the fight over immunity "would carry the day" when it came time to finalizing a FISA renewal.

Lawmakers have been trying to craft some long-term changes to FISA because the Protect America Act that allows the NSA surveillance activities to continue, with judicial oversight, expires in February. When Congress passed the stop-gap law last summer, many observers thought that some lawmakers were keeping immunity as a bargaining chip, a way to pressure the administration to hand over more information about the surveillance activities.

In late October, signs of a quid pro quo emerged when the White House gave a batch of documents to the Senate Intelligence Committee, after members "showed a willingness" to include telecom immunity in their FISA bill, according to White House spokeswoman Dana Perino. "Because they were willing to do that, we were willing to show them some of the documents that they asked to see." The documents included the presidential authorizations for the NSA activities, which were issued every 45 days, as well as legal opinions from the Justice Department approving those authorizations.

A Senate aide told National Journal that Intelligence Committee members were not prepared to include immunity in their bill without some White House movement on the documents front, but disputed the characterization that the senators had offered immunity in exchange. In fact, the staffer said, months earlier the committee had reviewed correspondence between the administration and the telecom companies in which the government asked the carriers to help gather intelligence that could prevent further terrorist attacks. Based on that correspondence, senators concluded that the telecoms had acted in good faith because executives believed that their actions were legal and had the president's blessing.

That conclusion has formed the basis of most committee members' thinking on the immunity question. "There are those who think the companies were clearly in the wrong and should be punished, but very few senators fall into this group," the aide said.

In October, the Intelligence Committee approved a bill that included immunity, and then waited for the Judiciary Committee to take up the measure, knowing that it might finesse the provision. The "extraordinary nature" of the period following the 9/11 attacks, coupled with the administration's assurances that new intelligence activities were designed to "detect and prevent the next terrorist attack," convinced Intelligence panelists that protection from prosecution was warranted, the committee wrote in a report accompanying its bill.

"This immunity provision is not the broad and vague immunity sought by the administration," Rockefeller wrote in additional comments in the report. It "does not provide retrospective immunity for government officials for their actions or to companies outside the specified timeframe. Nor does the bill extend to criminal proceedings." The panel's provision covers only activities undertaken after 9/11 and before January 17, 2007, when the administration placed the NSA surveillance program under judicial review.

"The committee did not endorse the immunity provision lightly," Rockefeller continued. "I believe it is the Bush administration, not the companies, who must be accountable for the mishandling of the warrantless surveillance program."

The Judiciary Committee had its crack at a revised FISA bill last month. It adopted a version with no immunity provision, but not for lack of trying. Committee members were prepared to consider some kind of language to protect the companies, but members did not reach a compromise before time expired on its markup, and Leahy chose to let the issue be settled on the Senate floor.

Both during and before the negotiations, committee members had suggested capping the amount of damages that could be levied against the companies or requiring the government to pay those damages. Just this week, the Judiciary Committee took up a proposal by Arlen Specter, R-Pa., the committee's ranking member, to substitute the government for the companies as the defendant in the civil cases.

At a December 1 press conference, Senate Majority Leader Harry Reid, D-Nev., said that several remedies remain under consideration, including some kind of hybrid, in which "there would still be immunity, but the government would be responsible for whatever damages, if any, were offered." Minority Leader Mitch McConnell, R-Ky., signaled Republicans' opposition to that approach -- "Taxpayers shouldn't have to foot the bill," he said -- which may dampen hopes for a compromise. But rather than being inflexible, Democrats seem as willing to negotiate over immunity as they've ever been in the two years since the NSA program was publicly exposed.

Published in National Journal

Labels: Foreign Intelligence Surveillance Act, Law, National Security Agency, Politics

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A Court at the Crossroads

by Shane Harris
Friday, October 19, 2007

As Democrats and Republicans debate legislation that would alter 30-year-old limits on intrusive electronic and physical searches by the government, the secretive 11-member court that oversees surveillance of foreign-intelligence targets in the United States finds itself in the middle of a very public power struggle.

Regardless of where law and policy makers fall on the question, now being debated, about which governmental branch should hold the most sway over intelligence operations, and which political party has the more effective and fair solution, they all agree on this much: The Foreign Intelligence Surveillance Court should play referee, and the government should receive some kind of authorization for a still-secret set of spying activities that many agree are essential to the war on terrorism. If that oversight results in warrants that violate the Constitution, as some scholars fear would occur if pending legislation is enacted, most Republicans and Democrats don't appear concerned about such a prospect or even cognizant of it. Such is the court's brave new world.

It is an odd, but perhaps not unwelcome, reality that the intelligence judges now play a decisive role in this controversy. Odd because for most of American history, the judiciary has ruled itself least qualified among the branches of government to manage intelligence activities. But not unwelcome because this court has waded into these waters before, and it believes it has been an indispensable buffer against government excess.

The 1978 Foreign Intelligence Surveillance Act, the court's animating law, was a grand political compromise. After years of unchecked surveillance by the FBI and intelligence agencies of prominent Americans and political dissidents both before and during the Nixon presidency, the FISA court became the arbiter of when and how the executive branch can spy on suspected foreign agents and terrorists inside the country. Especially after the 9/11 attacks, the judges have included more experts in national security law, court-watchers say, and the court's former chief judge has proudly proclaimed that the court turns down almost no surveillance requests because the government has learned to play within FISA's boundaries.

This system, however, was upended after the 9/11 attacks, when President Bush issued orders that allowed him to bypass the court when tracking domestic terrorism suspects. The orders seemed to reflect a long-held, simmering animosity toward the body by some senior administration officials, particularly Vice President Cheney's legal counsel, David Addington, who reportedly told a colleague after 9/11 that "we're one bomb away from getting rid of that obnoxious court."

Now, though, the court is regaining some of the authority it had lost. And if the president signs a new Democratic proposal to further amend FISA, the court would play a central and untested role in overseeing surveillance. It may welcome the chance.

Former Chief FISA Court Judge Royce Lamberth has described a panel of jurists confident in its interpretation of surveillance law, equipped to issue warrants quickly, and flexible enough to write new procedures during wartime. In remarks at the annual conference of the American Library Association in June, Lamberth, who left his post in 2002, said he hadn't found a better way of controlling government surveillance. But, the former judge added, there was a "worse way," and that was "what the president did with the National Security Agency": Bush's post-9/11 orders allowed the government's eavesdroppers to intercept communications inside the United States without the court's approval.

The NSA program, begun just after 9/11 and dubbed "the terrorist surveillance program" by Bush, continued without judicial check for more than five years, until January 2007, when the administration placed it under FISA court review. The exact contours of the court's initial orders about the program, which were to last for 90 days, are secret.

For that first 90-day period, the NSA program proceeded unimpeded, intelligence officials say. But, according to Mike McConnell, the director of national intelligence, in spring 2007 a different FISA judge said that the government needed a warrant to capture electronic communications between parties in foreign countries as those communications pass through routing equipment in the United States. "We found ourselves in a position of actually losing ground," McConnell told the El Paso Times in August. The government would have to apply for a warrant for each phone number it monitored in this way, and it takes about "200 man-hours" to fill out the necessary paperwork, McConnell said. FISA experts and lawmakers note, however, that the law contains emergency provisions that allow monitoring to begin before a court order.

The ruling on the U.S.-routed calls was a rare push-back from a court that, by Lamberth's count, has approved 99 percent of the government's warrant applications. The Bush administration then launched a massive lobbying effort to amend FISA; in August, Congress passed the Protect America Act. It effectively reversed the court's normal procedures (these require a warrant before surveillance) and gave judges an after-the-fact-review power for surveillance procedures, which inevitably pick up domestic communications when foreign targets call or e-mail people located in this country. The law was panned for its hasty and imprecise language, and some observers thought it even authorized warrantless physical searches of people's possessions and premises.

This brings the court to its current crossroads. To correct the law's deficiencies, as they see them, Democratic Reps. Silvestre Reyes of Texas and John Conyers of Michigan, the respective chairmen of the House Intelligence and Judiciary committees, have introduced the RESTORE Act, short for Responsible Surveillance That is Overseen, Reviewed, and Effective. The Democrats have said that the bill would "protect innocent Americans from warrantless eavesdropping." Republicans have blasted it as a roadblock in the executive's path, and the bill was suddenly pulled from the House floor on October 17. But as Benjamin Wittes, a Brookings Institution scholar and an expert on the FISA court, writes in The New Republic Online this week, Protect America and RESTORE are actually quite similar. They do, however, hold significant implications for the court.

"Under either approach, the [NSA] will have the legal authority to listen to your calls without first going to the [FISA] court to get a warrant," as long as the targets are people overseas calling people in the United States, Wittes writes. Under the Protect America Act, which the administration favors, the FISA court plays "only a tiny retroactive role in approving procedures for overseas surveillance." But under RESTORE, the court "would play a slightly-less-tiny role in rubber-stamping [surveillance] programs," Wittes maintains. The court, under RESTORE, is given additional powers to review and modify "minimization procedures," which are secret, are written by the government, and are supposed to ensure that information about "U.S. persons" (defined as U.S. citizens or legal residents) is scrubbed from intelligence reports.

Under the RESTORE Act, the court would also have a new, controversial power: granting programmatic or "blanket" warrants for whole classes of individuals overseas who are not U.S. persons. Historically, courts have ruled that such orders violate the Fourth Amendment, which requires that warrants be issued against specific individuals and locations. And although the foreign targets of surveillance don't enjoy constitutional protections, the U.S. persons whom they might call do.

Wittes argues that the RESTORE Act's "approach is a little like asking the courts to approve the reasonableness of police arrest policies prospectively instead of reviewing individual arrests. It's not the way we traditionally do things in the American constitutional system -- and it creates a potentially serious set of constitutional problems with the bill." But the law would require the administration to submit to the court "the procedures it uses to determine which surveillance is exempt from FISA -- and the court has the ability to send them back if they're unreasonable," he adds.

Under the previous version of FISA, the judges found ways to discipline the government. They could reject an application for a warrant; in one case, Lamberth barred a senior FBI official from appearing before the court, because he said that the official had presented false information. The RESTORE Act wouldn't really take these powers away.

Still, some see the recent amendments to FISA as a further weakening of constitutional protections. "There are significant problems that existed with FISA before the Protect America Act," says Jameel Jaffer, the director of the American Civil Liberties Union's National Security Project, who is leading a legal effort to have the court release its written opinions on the NSA's surveillance program.

The court "was created to circumvent the Fourth Amendment," says Jonathan Turley, a professor at the George Washington University Law School and one of the few lawyers ever to go inside the court's secure room. With the Protect America and RESTORE acts, Turley says, "Democrats and Republicans are amending the Constitution by default."

For their part, the FISA court judges are unlikely to weigh in directly on the constitutional debate. But using history as a guide, it seems unlikely that they'll do anything more or less than apply the statute as directed by Congress. Presumably, they'll also steer clear of deciding how valid the statute actually is.

Labels: Director of National Intelligence, Foreign Intelligence Surveillance Act, Intelligence, National Security Agency, Politics, Terrorism

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The Coming Storm

by Shane Harris
Friday, June 01, 2007

On November 2, 2004, top officials from the Homeland Security Department held a small Election Night party at a Washington restaurant to watch the presidential election returns come in on television. Nearly every leader there owed his job to the man then fighting for his own job -- George W. Bush.

The department was almost two years old and run almost entirely by political appointees. Twenty-three months earlier, they had been tapped to lash together 22 disparate, frequently dysfunctional agencies, some of whose failures to safeguard domestic security contributed to the 9/11 attacks.

As the returns trickled in, there was an hour or so when it appeared that Bush's Democratic rival, Sen. John Kerry of Massachusetts, might overtake him in the electoral vote count. Rather suddenly, some partygoers recalled, it dawned on them that they might be out of a job.

As they looked around the room, they realized they hadn't fully considered who would replace them. Who, they wondered, would keep the department running while President-elect Kerry picked a new leadership team? What career officials, whose posts are designed to outlast any one administration, would step in to ensure that planes flew safely, that borders were patrolled, that the government could respond swiftly to a natural disaster? No one could say for sure, because DHS had no plan.

"All the politicals thought we were out," says Stewart Verdery, then the department's assistant secretary for policy and planning for border and transportation security. Verdery was an energetic and experienced Capitol Hill staffer who had come to Homeland Security after a stint as senior legislative adviser to Vivendi Universal, the media conglomerate. But DHS was uncharted territory. "There was a definite sense that the transition was going to be rocky," he recalls.

The department's top echelons, of course, never had to experience what horrors a clunky handover of power could bring. But whether those leaders knew it or not, they possibly had just averted more than a management disaster.

The 1993 bombing of the World Trade Center and the attacks of September 11, 2001, both occurred within eight months of a change in presidential administrations. (At the time of the first attack, Bill Clinton had been president exactly 37 days.) In March 2004, Qaeda-linked terrorists bombed four Madrid commuter trains three days before Spain's national elections. Periods of political transition are, by their very nature, chaotic; terrorists know this, and they exploit it. This is the reality: Terrorists strike when they believe governments will be caught off guard.

As of June 2, there are 597 days until the next presidential inauguration, on January 20, 2009. As the Bush administration's days wind down, the government's level of vulnerability -- and the nation's risk level -- increase, and they will stay high until the next president gets on his or her feet. This is true in any transition. "The first year and a half of a new administration is really the most vulnerable in terms of political leadership," says Paul Light, a professor at New York University's Wagner School of Public Service.

Be Prepared

January 2009 has current and former officials particularly worried, because it marks the first time since 9/11 that the reins of national and domestic security will be handed off to a completely new team. At the Pentagon, this changeover doesn't matter as much. It has an entire joint staff of senior military officers who oversee worldwide operations, as well as regional military commands whose senior leadership stays in place. The Homeland Security Department, however, is another story. It is still run almost entirely by political appointees and stands to be the most weakened during the transition.

"Any of the other main Cabinet departments have civil servants that step in" as acting officials during a transition, says Stephen Flynn, a senior fellow at the Council on Foreign Relations and a leading expert on the department and its history. "Homeland Security doesn't have any of those.... And that's extremely unusual."

In the four and a half years since the department opened for business, few career officials have been promoted into positions of senior or even middle management. As a result, most of the responsibility for running the department, and its plethora of critical missions, is still in the hands of people who will be walking out the door as the Bush administration wanes or leaves en masse after the election. "The department virtually has no backbench," Flynn says.

The upheaval that strikes all organizations during presidential transitions will be magnified at Homeland Security, which has the third-largest workforce of any Cabinet department. And because the department's primary mission is to prepare for and respond to catastrophes, the magnitude of a terrorist attack or natural disaster during the transition could be compounded.

"The attack, when it happens, will be far more consequential," Flynn says. Light echoes that sentiment, and alludes to the department's most notorious disaster response. "The odds of a repeat of [Hurricane] Katrina are higher."

Former officials and experts are alarmed that so few Bush administration officials or lawmakers of either party have fully grasped this, and they worry that come Inauguration Day, national security could suffer.

"My fear is that on January 20, where does that transition team go to triage, quickly, the first 10 decisions they need to make?" asks Randy Beardsworth, who left the department in September 2006 as the assistant secretary for strategic plans. "There's not going to be a senior official with broad experience to answer that unless the transition team gets a couple of key folks to stay on a while."

When he departed DHS, Beardsworth was one of the last remaining senior officials who had helped the department stand up. And at the time of the 2004 election, he was one of the few career civil servants -- and the most senior one -- in a leadership post, and thus one of the few senior leaders who would have stayed on without having to be asked.

What people like Beardsworth -- career, nonpartisan security experts -- fear now is that another storm is heading the department's way. It makes landfall in 597 days, and the consequences could be severe. Hurricane Katrina was tracked on radar for several days before it struck; federal officials did make some preparations, but obviously they were inadequate. Will the department be ready for this next season of vulnerability? Some officials and homeland-security experts say that the Bush administration -- and even the presidential candidates -- should take action now to avoid a crisis.

Political by Design

The predicament in which the department now finds itself is almost entirely of its own and the White House's making. President Bush, who initially opposed creating a different domestic security bureaucracy after 9/11, ultimately assented amid mounting evidence about what clues the administration missed in the run-up to the attacks. Indeed, the White House changed its stance at the same time that Congress held hearings into pre-9/11 intelligence failures, in the summer of 2002. Before the year was out, Bush signed legislation to establish the department, which opened officially in January 2003.

From its inception, Homeland Security was run by political appointees or by other officials on loan to headquarters from the various agencies the department had absorbed. There wasn't a lot of time to post job notices and staff the ranks with career employees, who take much longer to hire, former officials say.

DHS had to be fully operational on day one. So, the White House and then-Secretary Tom Ridge largely handpicked their leadership team from the ranks of Bush loyalists. Before the 2004 election, Ridge's deputy secretary, his chief of staff, and almost all of his assistant and undersecretaries and their deputies were political appointees, people who by design would not stay long.

Former officials and experts recognize that haste dictated those early decisions. The problem, they say, is that the trend toward political appointees never subsided.

According to figures compiled in the quadrennial Plum Book by the Office of Personnel Management, as of September 2004 the 180,000-employee Homeland Security Department had more than 360 politically appointed, noncareer positions.

By contrast, the Veterans Affairs Department -- the government's second-largest department, at 235,000 employees -- had only 64. And the Defense Department -- far and away the largest department in the government, at 2.1 million employees, including military and civilian -- counted 283 appointed, noncareer billets. That figure includes political appointees at the Army, Navy, and Air Force. DHS's own reports show that since 2004, it has often added more political positions to its ranks, and more frequently, than other large departments.

It's common in government to find political appointees concentrated in policy shops, public-affairs offices, and legislative liaison posts. But that has never been the case at Homeland Security, where appointees run the first- and second-tier layers across almost all of the department's units.

"Early on, there was a sense that the administration wanted mostly political people," Beardsworth says. "They were very much concerned about loyalty and shaping the department where they wanted it to go." He says he always believed that his boss, Asa Hutchinson, the first undersecretary for border and transportation security, as well as Ridge "had the good of the country at heart.... I never had the feeling that we were making partisan decisions."

But after the 2004 election, when Bush announced that he "earned capital in the campaign, political capital, and now I intend to spend it," things changed. Under the new DHS secretary, Michael Chertoff, former officials say that the tone and tenor of political appointments took a turn. Personal connections and political fealty became litmus tests, these ex-officials say. Faithfully shepherding administration policy was to be expected, but the department's leaders seemed more beholden to individuals with close ties to the White House.

In September 2005, for instance, the administration sought to install Julie Myers, a 36-year-old lawyer with little management experience, as the assistant secretary in charge of the Immigration and Customs Enforcement division. ICE was poorly run and a constant problem for the department, and during her nomination hearing, Sen. George Voinovich, R-Ohio, told Myers she was unqualified to helm the unwieldy agency.

For many critics, Myers's strong political connections explained her swift rise to power. She is the niece of Air Force Gen. Richard Myers, then the chairman of the Joint Chiefs of Staff. She is married to John Wood, who was Chertoff's chief of staff and an ex-aide to Attorney General John Ashcroft. (Wood is now the U.S. attorney for the Western District of Missouri.) Despite Julie Myers's lack of experience, President Bush gave her a recess appointment to the job.

The Land of Misfit Toys

Charges of nepotism, cronyism, and incompetence continued to dog Homeland Security's senior ranks, particularly after the fumbled response to Hurricane Katrina, which was initially directed by an official with meager experience in disaster response -- Michael Brown. Nominees who would normally have slid into their jobs with little notice were now held up to scrutiny and sometimes ridicule. Take the case of Andrew Maner, a former staffer to President George H.W. Bush, who became the department's chief financial officer. Responsible for a multibillion-dollar budget, Maner couldn't point to any obvious credentials in accounting and finance on his resume.

And then there was Douglas Hoelscher. The former White House staffer and Republican campaign aide was 28 years old when he became executive director of the Homeland Security Advisory Committee last year. The policy group gathers advice on such critical issues as protecting infrastructure and countering weapons of mass destruction.

Hoelscher had no management experience, but had apparently proven himself as a Bush campaign staffer. At the time of his appointment, he was the department's liaison to the White House, where, in the words of a Homeland Security spokeswoman, he "made sure [that political appointees] were all placed in the office where they were happiest and ... fit best."

Most recently, Philip Perry, the department's now ex-general counsel, stirred critics' ire. Perry is Vice President Cheney's son-in-law. In February, David Walker, the comptroller general of the United States and Congress's chief watchdog, told House overseers that his office faced "systemic" and "persistent" problems trying to obtain DHS documents because it had to go through Perry. Walker complained that Perry's office reviewed documents before their release, and that his staff sat in on investigative interviews with Homeland Security employees.

Of all the departments in the government, Homeland Security has the most notorious reputation for placing political appointees in jobs over their heads. In fact, even before the bungled response to Katrina, critics warned that the department could be come a haven for patronage if officials didn't work hard to beef up DHS's career ranks.

Indeed, Homeland Security has earned a reputation as a political dumping ground, a sort of Land of Misfit Toys, where GOP fundraisers or apparatchiks are sent to pad their resumes or to cool their heels. There is more than a little truth to this -- the department does have a lot of political appointees whose main strength seems to be loyalty to Bush and connections to the White House. But former officials and observers say that the department has many well-intentioned and hardworking political employees, including in the senior ranks.

Nevertheless, the stain of incompetence and cronyism hasn't faded, nor has the reality that Homeland Security is something of a revolving door. According to Flynn, of the 60 top officials at the department, only one has been there since 2003 when Homeland Security opened its doors.

"This is essentially the most challenging merger and acquisition in government history, and it's being managed with this turnover in people," Flynn says. His fear, shared by other experts, is that the limited institutional memory of the Ridge years was lost under Chertoff, and that that memory will be lost again when a new administration takes over.

The department's leaders have virtually no playbook for transition, something other departments and agencies of that size literally pull off the shelf every four or eight years. "They're almost starting from scratch," Flynn says.

The Exit Strategy

If the department is to weather the storm of transition, it will largely depend on the efforts of one man -- Michael Jackson, Homeland Security's deputy secretary.

"If a day goes by and I don't use up some of my brain cells focusing on this problem, it's a very unusual day," he says. The administration has a set of policy goals it wants to achieve before the transition. But underpinning that, Jackson says, is a plan to leave the department stronger than it is now, "so that people [will] start a new administration with the sense that the department has reached a level of maturity." The possibility of a major attack before or soon after the transition factors into his planning.

Jackson says he is drawing up succession plans for "every operational component": the Secret Service, the Immigrations and Customs division, the Federal Emergency Management Agency, and others, as well as the top layers of management. The basic idea is to find talented career, nonpolitical employees who can move up into more-senior ranks, and then serve in an acting capacity when the administration changes hands. (It will be the next president's prerogative to keep or dismiss those officials.)

"We've gone throughout the entire organization and looked for people like this to promote," Jackson says. "We're trying to nurture a cadre of owners. I am the part-time help at DHS."

Jackson acknowledges that it hasn't been easy to keep good help. "We've had a significant turnover," he says. "And that turnover has been below the top-level jobs as well." But, he insists, preparations for the transition are well under way. "I would say we are well beyond the halfway point in what we have to get done."

Certain agencies within DHS ought to fare better than others. The Coast Guard, for instance, has an entrenched military culture, so command will shift more smoothly. The Secret Service, although now headed by a presidential appointee, will still likely draw from within its own ranks in the next administration. And in the intelligence directorate, officials have implemented a slew of training programs to cultivate junior officers for more-senior posts.

But it's the headquarters operation, not the front-line agencies, that has observers most worried. The constant turnover and reliance on political appointees has effectively stunted the growth of a management class.

There are notable exceptions. The current commissioner of Customs and Border Protection, Ralph Basham, and FEMA Director David Paulsion have spent most of their careers in government and have held other senior positions in the department.

But across the top layers of Homeland Security, critics say, the department is still far more reliant on political appointees than other large departments. And this state of affairs causes some national security experts to pose a challenge to the field of 2008 presidential hopefuls: Commit now that if you win the election, you will keep the top leaders at Homeland Security, and across the intelligence agencies, perhaps indefinitely.

Permanence in Transition

It might seem anathema that, say, a President Hillary Rodham Clinton would ask Michael Chertoff or any of his lieutenants to serve in her administration. It might seem even less likely that any candidate of either party, given how forcefully they'll try to distance themselves from the security policies of the Bush administration, would throw out an open invitation for the architects of those policies to hang around. But that might just be the soundest move in the interests of national security.

"It's possible," Jackson says. For example, even if Chertoff left, his replacement could ask the director of FEMA or his deputy to stay. "That would be one thing I'm prepared to advise," Jackson says. And there is precedent for such a move.

Michael Hayden, now the director of the CIA, served under two presidents -- Clinton and the second Bush -- as National Security Agency director. Ex-CIA Director George Tenet also held on to his job in that transition. True, Tenet lobbied to stay, and the CIA director's success has always depended on a personal rapport with the president. (Tenet and Bush got along from the start.) But Hayden and Tenet proved that professionals can overcome politics, at least during a transition.

Members of Congress have considered awarding top intelligence and security jobs political immunity. In the mid-1990s, House Republicans contemplated making the CIA director the head of the agency -- rather than an overall intelligence czar as the director was then -- and giving the position some statutory longevity. The idea was to make the job more like the FBI director's post, which doesn't automatically turn over on Election Day, says Tim Sample, who was the staff director of the House Permanent Select Intelligence Committee at the time.

"The only reason we did not take that step in our recommendations was the issue of the personal rapport with the president," says Sample, who is now president of the Intelligence and National Security Alliance, a nonprofit intelligence advocacy group. Lawmakers understood that the president and the CIA director had a unique relationship, one they thought should be preserved. But they still believed that, fundamentally, the job should be above politics, and Sample says this is truer than ever today.

This idea is gaining traction again in security circles, especially in the intelligence community, where many current and former officials think that the recent appointments of several seasoned experts to top slots has resulted in a "Dream Team." Defense Secretary Robert Gates is a former CIA director; career intelligence officer James Clapper is Gates's military spy chief; former National Security Agency Director Mike McConnell is now director of national intelligence; and Hayden, the ex-NSA chief, is running the CIA.

Former officials and experts recoil at the idea of losing such a deeply experienced, collegial, and by all accounts remarkably apolitical team of leaders at such a critical moment for national security. They want lawmakers and the presidential candidates to consider keeping those officials in their posts.

The same goes for Homeland Security. "The only reason there are all those [political] positions is just because of the way the department came together," Sample says. "One could argue those should not be political positions."

There's precedent for that, too. Before the Office of the Director of National Intelligence was established in April 2005, career assistant directors managed the intelligence agencies, and were charged with overseeing various programs and policies that stretched across administrations. On a practical level, the agencies needed that continuity, but officials also wanted to avoid politicizing intelligence, Sample says. It has always been a difficult goal, inconsistently achieved, but it's one that all presidents are encouraged to aim for.

Some experts have suggested that Congress cap the number of politically appointed senior posts at Homeland Security as a way of stanching future brain drains. Sens. Voinovich and Daniel Akaka, D-Hawaii, have proposed legislation to elevate the undersecretary for management to the third-ranking spot in the department. The bill would require a career employee to also serve in a five-year term as the secretary's "principal adviser" on management issues.

Jackson, the deputy secretary, strongly opposes the bill, saying it is unnecessary. He insists that the current leaders understand the problems Voinovich and others have expressed. "This is stuff we all talk about," he says. "The team gets it.

"I won't blow smoke at you and say everything is nailed down and perfectly fixed," Jackson continues. "The day that someone in my department tells you that about DHS is the day that person should get out of his job.... But [the transition plan] is not something I feel anxiety about."

Opportunity Lost

Those who know Jackson and have worked with him say he has never been one to put partisanship over security, and that he is not biased against career employees. But some have accused him of micromanaging the department and not handing over enough authority earlier to career officials. These failures, they say, have retarded the department's maturation process. For his part, Jackson says he's focused on the transition, and has drilled the urgency into all of his lieutenants.

In government, organizations mature by finding the right balance of politically motivated leaders and apolitical bureaucrats. The former have the ability, and the credibility, to make policy, and the latter actually know how to make it work. This is the tension that, sooner or later, leads to equilibrium.

Beardsworth, the former assistant secretary, has always adhered to that philosophy. He's now a vice president at Analytic Services, a nonprofit research group that advises security and intelligence agencies. Its Homeland Security Institute, a federally funded research and development center established in the same law that created DHS, is counseling senior officials on transition strategies. Knowing the department lacks a playbook, Beardsworth hopes the institute has enough experts to help ease the transition, and he praises Jackson for taking action now.

But like Jackson, Beardsworth isn't blowing any smoke. "Does the department have the right political and career mix to ensure a smooth transition?" he asks, sounding like a frustrated yet hopeful parent. "No. They've likely missed that opportunity."

Published in National Journal

Labels: Homeland Security, Human Capital, Politics, Transition

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