What is the Clean Air Act, and why does it matter?

The Clean Air Act was passed in 1963 and has been significantly amended over the last several decades, with the last major changes coming in 1990. The law is long and complicated, but its overall goal is to protect human health from pollutants in the air. (For the wonks among us, the Environmental Protection Agency has a copy of the act, with all its various amendments, here.)

The act is significant for its many successes. Remember the hole in the ozone layer that we heard so much about in the ’90s? The act essentially banned the use of chemicals that deplete ozone, and scientists now say that, though it will take decades for the ozone layer to return to normal, its depletion is slowing.

Why can the Obama administration regulate greenhouse gas emissions under the act?

The Clean Air Act wasn’t written with greenhouse gases in mind, but in a 2007 decision, the Supreme Court found that EPA could regulate greenhouse gas emissions under the act’s authority. In fact, if the agency determined these sorts of emissions endangered public health, it would have a legal obligation to regulate them, according to the court’s interpretation of the law.

In its so-called endangerment finding, EPA concluded that greenhouse gas emissions do indeed threaten public health. According to the court’s decision, that finding compelled the agency to regulate the emissions.

Though the White House has stated its preference to deal with climate change in Congress, administration officials have said they will move forward with regulation under the Clean Air Act if lawmakers are unable to pass climate legislation. As I’ve reported countless times here, there is about a zero percent chance that the Senate will pass climate legislation that puts a cap on carbon pollution this year. And, depending on the outcome of the mid-term election, it will be an uphill battle next year too.

Who is threatening the Obama administration’s authority under the act, and why?

EPA regulation of greenhouse gas emissions under the Clean Air Act is the nightmare scenario for Republicans and many Democrats, who see regulation under the act as much more complicated than passing legislation to address the issue. But Republicans and moderate Democrats clearly did not see the threat of EPA regulation as reason enough to vote for a cap-and-trade bill: they have come to an impasse with their more liberal counterparts on the legislation.

Sen. Lisa Murkowski (R-Alaska) tried and failed to pass a resolution that would have essentially blocked the administration from regulating greenhouse gas emissions under the Clean Air Act, but the Senate rejected the measure in June. Sen. Jay Rockefeller (D-W.Va.) has also emerged as a major player in the debate, offering his own bill to delay EPA’s action.

Now, on to this week’s developments:

• Early this week, a number of press reports said a Senate Appropriations Committee mark-up of an EPA and Interior Department appropriations bill could give lawmakers an opportunity to block EPA regulation of greenhouse gas emissions. The reports suggested that an amendment blocking or delaying the EPA regulation could pass.
• On Tuesday, the Appropriations Committee canceled the markup of the EPA/Interior appropriations bill.
• Speculation then turned to Rockefeller, who said that there will be a vote this year on his measure to delay by two years EPA’s ability to regulate greenhouse gases under the Clean Air Act. The time frame for a vote is unclear.
• Now, Politico and others are reporting that Sen. Kit Bond (R-Mo.) could offer Rockefeller’s proposal as an amendment to the defense authorization bill.

Looming over all of this are the administration’s efforts to move forward on greenhouse gas regulations. In fact, EPA Administrator Lisa Jackson said this week that she plans to issue guidance on the regulations soon.

“I have concerns about Clapper as a choice,” committee chairwoman Dianne Feinstein, D-CA, told The Cable in an interview, saying that the widely expected nomination of Clapper, who now is under secretary of defense for intelligence, would give the military too much control of the intelligence community. “The best thing for intelligence is to have a civilian in charge. The elbows are less sharp.”

In a bit of irony that surely warms hearts at Langley, Feinstein’s choice for the nation’s top intelligence post is — wait for it — Leon Panetta, the CIA director whose nomination Feinstein initially fought hard to scuttle. I suppose you could be cute and suggest that Feinstein secretly just wants the bureaucratic meatgrinder that is the Office of the Director of National Intelligence to finally grind Panetta’s flesh and bones. But most likely she’s just been impressed by his job as CIA director.

And so has Kit Bond (R-Mo.), the committee’s GOP vice chairman. Rogin further reports that there’s no daylight between the committee leaders on who they want for Blair’s job. Panetta is “the only one who has the clout to make it work,” Bond told Rogin, “I have reservations about [Clapper] in that job.”

Does Clapper’s (possible, prospective, never official) candidacy survive public opposition from the leadership of the Senate committee that will have to approve him?

The full statement is after the jump.

The Intelligence Community (IC) fully supported the Senate Intelligence Committee’s review of IC information and procedures prior to the attempted bombing of Northwest Airlines Flight 253 by Umar Farouk Abdulmutallab.

Immediately following the attempted attack, Director Blair initiated reviews to identify IC-wide shortcomings and potential solutions. The findings of these reviews identified many of the same systemic problems noted in today’s SSCI report.

As a result of the ODNI’s internal review and the President’s January 7 directive, the IC has undertaken certain corrective actions to address these shortcomings. Specifically:

The DNI clarified roles and responsibilities among the IC’s counterterrorism functions, ensuring that any stream of threat reporting receives follow-through to its conclusion;
The establishment of a dedicated analytic element at NCTC to thoroughly and exhaustively pursue terrorist threat threads, including identifying appropriate follow-up actions by other intelligence and law enforcement organizations, and increasing the number of personnel resources dedicated to enhancing the records of information on individuals contained in the Terrorist Identities Datamart Environment or TIDE;
Renewed efforts to integrate disparate data and information systems to make data more discoverable/accessible by analysts IC-wide; and
Investments in education and training, which will provide counterterrorism analysts with a career-long curriculum to facilitate integration, collaboration, and tradecraft improvements.

In light of the recent Times Square bombing attempt, Director Blair noted that, “The Intelligence Community is aggressively focused on potential threats, especially new tactics by radicalized individuals. At the same time, institutional and technological barriers remain that prevent seamless sharing of information. We can and must outthink, outwork, and defeat our enemies. The Intelligence Community is absolutely committed to that goal.”

“Prior to 12/25,” reads the report, spearheaded by committee leaders Dianne Feinstein (D-Calif.) and Kit Bond (R-Mo.) and declassified for release this afternoon, the National Counterterrorism Center, a 600-employee center inspired by the 9/11 Commission to tie together all streams of terrorism intelligence to prevent another surprise attack, “was not adequately organized and did not have the resources appropriately allocated to fulfill its missions.” That echoes a critique that NCTC veterans and whistleblowers made to The Washington Independent in January.

The committee’s report casts blame around the intelligence community for its inability to prevent Umar Farouk Abdulmutallab, a young Nigerian citizen educated in the U.K. and trained by al-Qaeda’s Yemen-based affiliate for the attack, from boarding Flight 253. But it finds the key bottlenecks occurred at NCTC. As we’ve reported for months, analysts within an NCTC-led process did not find that the threat information on Abdulmutallab did not meet the standard of specificity for moving him onto the FBI’s terrorist watchlist or the no-fly list. (The standard is “Specific derogatory information leading to reasonable suspicion.”)

But NCTC’s analysts, despite possessing a statutory mandate to “serve as the central and shared knowledge bank on known and suspected” terrorists, did not even “conduct additional research” to meet the “specific derogatory information” standard necessary to keep Abdulmutallab out of the U.S. — even after possessing enough information to place him on the Terrorist Identities Datamart Environment database. And while the committee’s report doesn’t get specific in its unclassified summary, it hints repeatedly that there existed throughout the intelligence community enough piecemeal intelligence to meet the standard. “Analysts responsible for making the watchlisting determination did not believe they had the ability to give additional weight to significant pieces of information from the field, such as the report that resulted from the meeting with Abdulmutallab’s father,” the report states.

Its recommendations call into question the basic analytic and organizational competence of NCTC — something that its own analysts have done in interviews with TWI last January. The committee finds that for all of NCTC’s supposed analytic focus on al-Qaeda and the Middle East — though fewer than ten analysts work full-time on the Middle East and fewer than half of its 300 analysts work full-time on al-Qaeda — NCTC missed signals that al-Qaeda’s Yemen affiliate sought to attack the U.S. domestically. NCTC’s director “should ensure that all NCTC analysts understand their responsibility to connect related all-source information and disseminate all possible threat reporting, particularly reports that might help identify homeland threats,” the committee’s report states. And the director — for the time being, Michael Leiter — should “ensure that NCTC is organized and resourced to fulfill its responsibility to track, analyze, and report on all terrorist threats to the United States emanating from terrorist groups overseas.” You could be forgiven, after reading that, for wondering what NCTC has been doing for the first five years of its existence.

I’m awaiting comment from spokesmen for Leiter and for Dennis Blair, the Director of National Intelligence, whom the committee recommends should conduct his own review of the systemic failures here, “mindful of the intent of Congress to give NCTC the primary role and responsibility” for assembling all-source terrorism intelligence.

Feinstein issued that call in a Tuesday press conference following an intelligence briefing her committee received from the FBI, the National Counterterrorist Center and the Department of Homeland Security in the wake of the attempt. Her co-chairman, Sen. Kit Bond (R-Mo.), was more cautious about attributing blame to Pakistani extremist groups, though Bond appears to have napped during the briefing. While both Feinstein and Bond characterized that the extremist groups’ culpability as unproven, Feinstein said that suspect Faisal Shahzad, a naturalized U.S. citizen, received “training while he was in Pakistan, specifically Waziristan, from the Taliban.”

This afternoon, Feinstein’s office released a letter the chairwoman sent to Secretary Clinton, seeking the new designation for the Pakistani Taliban and the Haqqani Network. The full letter:

Dear Secretary Clinton:

I write to urge you to add the Tehrik-i-Taliban Pakistan (TTP) (commonly known as the “Pakistani Taliban”) to the State Department’s list of Foreign Terrorist Organizations and to consider adding other terrorist groups to the existing list of forty-five designated terrorist groups.

I believe that there are several terrorist groups – like the Pakistani Taliban and the Haqqani Network – not currently designated as Foreign Terrorist Organizations that meet the following criteria laid out by section 219 of the Immigration and Nationality Act:

(1) The organization is foreign;
(2) The organization engages in terrorist activity; and
(3) The terrorist activity threatens the security of United States citizens or the national security of the United States.

I believe the Pakistani Taliban and the Haqqani Network clearly meet all three criteria. I also believe the list of designated Foreign Terrorist Organizations must be reviewed and updated on a routine basis given the evolving and multiplying number of terrorist groups and the militant groups with which they associate that threaten our national security, especially those in the Afghanistan-Pakistan region.

Designating more groups as Foreign Terrorist Organizations would enable law enforcement and our Intelligence Community to: (1) curb terrorism financing to the group, (2) bar foreign nationals with ties to the group from entering the U.S. and remove them from the U.S. in some instances, and (3) ban material support to the group.

Thank you very much for your attention to this matter and for your continued good work to protect the national security of the United States.

Sincerely yours,

Dianne Feinstein
United States Senator

And if Bond got amped with us, that might be because he had plenty of time to relax during the briefing:

One person who was in the room for Tuesday’s intelligence briefing said Bond appeared to fall asleep for 10 to 15 minutes, but that he and other senators had spirited exchanges with the briefers.

That’s via Ben Frumin and Matthew Yglesias. Bond also said in his press conference that he was upset it took ten days to get the intelligence community to brief him and the Senate intelligence committee in the first place. So he couldn’t have had an extra cup of coffee when the briefers trudged to the Hart building?

But committee chairwoman Dianne Feinstein (D-Calif.) inclined strongly toward that interpretation. “We clearly know that Shahzad drove the bomb-laden SUV to Times Square [and] that he received explosives training in Waziristan,” Feinstein said, calling for both the Pakistani Taliban and the extremist network run by the Haqqani family on both sides of the Afghanistan/Pakistan border to be placed on the State Department’s list of banned terrorist organizations. Asked for clarification about Shahzad’s ties to the Pakistani Taliban, who claimed responsibility the day of the attempt, “I believe there is a high likelihood that he did have training while he was in Pakistan, specifically Waziristan, from the Taliban,” but called that in part a “deduction from what I’ve heard.”

Feinstein’s GOP counterpart, Kit Bond (R-Mo.), chided Attorney General Eric Holder for being definitive about Shahzad’s Taliban connections on Sunday talk shows. “I am not convinced by the information I’ve seen so far that there is adequate, confirmable intelligence to corroborate the statements on Sunday television shows,” Bond said. “We hear there are lots of strong suspicions and lots of trails [the intelligence community is] following. I think people should wait to speak about the origins until they are certain about it.”

Bond objected to reading Shahzad, a U.S. citizen, his Miranda rights to remain silent and to speak with an attorney. Feinstein countered that Shahzad has waived his right to a speedy arraignment, an indication, she said, “that he’s continuing to provide valuable information to authorities.” But earlier today, Robert Gibbs told a White House press briefing that President Obama wants “limited flexibility” to expand the time a suspect can be interviewed in an emergency situation before receiving Miranda. And Feinstein appeared to go even further — even if she intended to head off a piece of legislation.

“There are grounds in the law now to revoke his American citizenship,” Feinstein said. “I don’t think you need additional legislation to revoke his citizenship, because this is within five years of him having been naturalized and that’s the criteria. And the act that you can remove citizenship for, I believe, has been committed by this man.” Feinstein was referring to legislation by Sen. Joe Lieberman (I-Conn.) that would allow the government to strip terrorists of their American citizenship.

Feinstein, Bond and their committee received their briefing this afternoon — a belated one, in their view — from John Pistole, the deputy director of the FBI, the lead agency in the Shahzad case; Michael Leiter, the director of the National Counterterrorism Center; and Rand Beers, an undersecretary of Homeland Security.

Unlike in the case of Umar Farouk Abdulmutallab, the would-be Christmas bomber, Feinstein said the intelligence community did not have information on Shahzad in advance of the attempt on Times Square. “Shahzad was almost completely under the radar,” she said, “which in many ways is even more ominous.” She suggested that the intelligence community should “improve our screening” of Pakistanis entering and leaving America, but hastened to add that she didn’t “want to harass people unnecessarily.”

But there was one commonality between Shahzad and Abdulmutallab that Feinstein said might indicate a new template for extremist recruits: They’re both sons of prominent families educated in Western countries with clean criminal records. “The individual with no suspicion about him is going to be the individual that may be the new lone wolf of the future in this country,” Feinstein said.

[A]t the FBI’s request, some, but not all airlines, were notified of the new listing. The official said the FBI was concerned that giving out Shahzad’s name to too many people might fuel news leaks that grew into a torrent during the afternoon of May 3. Among the airlines which was not phoned with the APB about the new “no fly” listing for Shahzad: Emirates Airlines, the very carrier Shahzad had chosen to try to evade a massive dragnet by the FBI and various local partners, including New York Police Department, had set up to collar the Times Square attack suspect. Homeland Security officials have accused airlines of stalling federal efforts to get them to upgrade computer systems so that “no fly” information would move much more quickly from the feds who draw up the list to airport ticketing and check-in counters.

The true horror? The FBI had a reasonable fear in this case. I was at Guantanamo Bay last week and I was still able to get fairly rapid breaking-news alerts about various developments in the Times Square bombing case. A leaked no-fly notification procedure through the airlines, even through something minor like Shahzad seeing a spooked ticket agent when his name showed up flagged on a computer, might have caused a presumably-paranoid terrorist-aspirant to think twice about taking a plane out of the country.

A solution has to focus on something that Secretary of Homeland Security Janet Napolitano frequently discusses, and sends Deputy Secretary Jane Holl Lute abroad to address: increasing airline buy-in with security procedures. But even then, Napolitano and the FBI will still have to coordinate to balance and mitigate the equities at stake here, because it’s hard to envision a solution that eliminates the possibility of a no-fly name leaking, even on a high-priority case like the Times Square bomber.

At the bottom of Hosenball’s piece, Sen. Kit Bond (R-Mo.) tries his best to politicize the issue: “Once we knew who this terrorist was, why couldn’t we have put out an APB to the airlines?” Maybe that’s the right call. But he’ll have to explain that to the FBI, and instruct the Department of Homeland Security how to enforce leak-proof procedures among private airline companies. Maybe he can also explain to his GOP Senate colleagues why this might not be the greatest time to conduct witch hunts among  President Obama’s nominees to head the Transportation Security Administration.

From The New York Times:

Senator Scott Brown of Massachusetts, the newly elected Republican, was the first to join Democrats in backing the measure. He was then joined by Senators Susan Collins and Olympia Snowe of Maine, George Voinovich of Ohio and Christopher Bond of Missouri, who voted after it became obvious Democrats would prevail.

Sen. Mitch McConnell (R-Ky.) beat the buzzer by a few days, but the entirety of the GOP attack has been to establish in the media bloodstream the narrative that Obama doesn’t know what he’s doing on counterterrorism. All of this happened while the Obama administration and its Pakistani partners had unquestionably the most important Taliban prisoner in the eight-year Afghanistan war in their custody. Simultaneously, Umar Farouk Abdulmutallab, the would-be bomber of Northwest Airlines Flight 253, cooperated with interrogators after his Mirandization and humane treatment. And add to the mix this weekend’s new Afghanistan offensive in Marja. Is there any aspect of the conservative critique of Obama on national security that bears any resemblance to reality at all?