Good David Ignatius column on What James Clapper’s Nomination Means:

The DNI flap has been fascinating in what it shows about Obama’s approach to intelligence. He wants facts, not commentary; he mistrusts aides such as Blair who let their personal opinions show, and he correspondingly values low-key colleagues such as Gates; he wants to oversee intelligence not from a separate fiefdom but from inside the White House, where former CIA official John Brennan serves as deputy national security adviser.

Sen. Dianne Feinstein (D-Calif.), read this column. Ignatius’s insightful observation indicates that your problem isn’t whether Clapper is an obstacle to a strong director of national intelligence. It’s whether John Brennan and President Obama are those obstacles. Institutional powers matter. They matter a lot. But unless the structure of the intelligence community changes radically, the strongest you can make the job is akin to a powerful congressional committee chair, not a cabinet secretary, to use the formulation of Defense Secretary Robert Gates, a former CIA director. More radical changes would require a presidential commitment, and clearly Obama would prefer intelligence to be ultimately answerable to John Brennan at the White House. Accordingly, that’s going to be the official to whom the leadership of the intelligence agencies look to for their cues, whether or not Clapper gets confirmed and no matter what Clapper tells Feinstein when they parley in the coming days.

Speaking of Blair’s replacement, Feinstein doesn’t come out and say it, but her statement gives a cold shoulder to James Clapper, the Pentagon’s intelligence chief and Blair’s deputy for Defense intelligence, who’s reportedly the leading candidate for the job. “It will be important that any nominee is not beholden to the Pentagon’s interests and can, as needed, provide balance to civilian and military interests in carrying out the nation’s intelligence missions,” Feinstein said in the statement.

No one agency, particularly the Department of Defense, should control the flow of intelligence to the President. The majority of the intelligence budget is already executed by the Department of Defense, and it will always have a strong influence over the Intelligence Community’s operation. That should be balanced, however, by the need for the community to provide strategic intelligence beyond what is necessary for the warfighter.

On the one hand, Feinstein also opposed Leon Panetta’s appointment as CIA director until she got an assurance — in the form of Steve Kappes staying on as deputy director (he recently announced his retirement) — that Panetta wouldn’t jeopardize her prerogatives. On the other, Feinstein didn’t announce any opposition before Panetta’s nomination was announced.

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.

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?

Blair certainly thinks it should be him. In May, Blair issued a directive saying that the CIA station chief is will be dual-hatted as his representative, and in “rare circumstances” the DNI reserves the right to appoint someone from a different intelligence agency as necessary. Panetta took issue with it. The issue is current under review by the National Security Council. (Marc Ambinder reported recently that Vice President Biden may be the deciding factor.)

The Senate Select Committee on Intelligence has sided with Blair. In the unclassified summary of its 2010 intelligence authorization bill is this language unambiguously backing Blair’s directive, known as ICD-402:

The directive recognizes the value of turning to the CIA Chief of Station to be the DNI’s representative in foreign countries, but also recognizes that some locations may give rise to circumstances where that responsibility is best met by an official with expertise derived from another Intelligence Community element, which in fact is already current practice and is not disputed by anyone.

In any event, the DNI, exercising his authority under the law, has made the decision that that the directive is the right choice for the Intelligence Community.  The Committee supports the DNI in that choice and looks forward to the CIA’s prompt adherence to his decision.

This wouldn’t have the force of law if the bill passes, as it’s assumed it will. But it’s an unambiguous indication of congressional support for the DNI over the CIA. And it’s already not going over well in some corners of the community. A U.S. intelligence official who would only speak anonymously said that the Senate intelligence committee was actually fuzzy on the implications of what its language entails. For instance: what happens to the CIA chief of station if the DNI puts a different intelligence official over him or her?

“If there are stations chiefs and DNI reps in the same place overseas, who will the American ambassador turn to?” the official said. “Having two top dogs in overseas stations isn’t the way to do business. We need a clear chain of command, not an exported Beltway bureaucracy that causes confusion within our own government and with foreign partners. Liaison services need to know which number to dial.” (“Exported Beltway bureaucracy” won’t go over well at the DNI’s office…)

The official referenced the fact that question of station-chief-authority predates either Blair or Panetta’s appointments, even stretching back to the first DNI, John Negroponte, and noted that the Senate didn’t take a position on the necessity of switching the authority over to the DNI. “It’s almost as if [Senators] want to say they can do this rather than they need to do this,” the official. “What’s the outcome they’re trying to achieve? That’s not at all clear.” What’s crystal clear is that the Senate panel thinks that whatever the outcome, Dennis Blair should be in charge of it.

Update: That’ll teach me not to update my headline from my scratch copy. Apologies.

Rice took the question in stride. First, she said she was reluctant to criticize Obama. “I will not agree with everything they do, and I won’t agree with everything they say,” she said. “But the worst thing about being in government is that people outside government who don’t have to deal with the daily struggles you do, and aren’t trying to solve really difficult problems, are just sitting out there commenting and criticizing, particularly people who’ve just been in government. That’s really unfair. So for the time being, if I disagree, I will keep it to myself.”

I know, I know. The real victims here are the former Bush officials who have to endure an endless litany of bad-faith criticism from, like, citizens. Remember: they whipped the Savior up the hill that morning. Draw strength from the example, Ms. Rice. (Sorry, Doctor Rice.)

Then she got to the heart of the question. “Let me just say that President Bush was very clear that he wanted to do everything he could to protect the country. After Sept. 11, [2001,] we wanted to protect the country,” she said. “But he was also very clear that we would do nothing, nothing that was against the law or against our obligations internationally. So the president was only willing to authorize policies that were legal in order to protect the country.”

She added: “I hope you understand that it was a very difficult time. We were all so terrified of another attack on the country. Sept. 11 was the worst day of my life in government, watching 3,000 Americans die. . . . Even under those most difficult circumstances, the president was not prepared to do something illegal, and I hope people understand that we were trying to protect the country.”

And I was trying to drive safely home, officer, and never intended to plow my car into that schoolyard full of fourth-graders. We can debate whether I should have had those drinks before getting behind the wheel, but my lawyers informed me that there were interpretations of the law under which everything I did was legal, and in any event my trusted friend told me that even before my lawyers gave me that advice I should go warm up the car. This is a time to look forward and not backward. And I might add that you weren’t even at the bar when we were making these plans.

So recall that the CIA asked for the memo because in June 2007 President Bush issued an executive order, known as 13440, that sought to update the basis for the CIA’s interrogation program to accommodate the Supreme Court decision in Hamdan v. Rumsfeld and subsequent acts of Congress that specified, as the Senate intelligence committee put it, “particular violations of Common Article 3 [of the Geneva Conventions] subject to criminal prosecution under the War Crimes Act.” CIA wanted to be super-duper sure that it had full legal approval for, uh, things that might be war crimes unless they were sprinkled in the OLC’s magic legal pixie dust. So its lawyers went to OLC and got a memo produced. What did it say?

The July 2007 opinion includes extensive legal analysis of the war crimes added by the MCA [2006 Military Commissions Act], U.S. constitutional law, the treaty obligations of the United States, and the legal decisions of foreign and international tribunals.  The July 2007 opinion does not include analysis of the anti-torture statute but rather incorporates by reference the analysis of the May 2005 opinions that certain proposed techniques do not violate the anti-torture statute, either individually or combined.

In considering “traditional executive behavior and contemporary practices” under the substantive due process standard embodied in the Detainee Treatment Act, OLC considered similar sources to those considered in the May 2005 opinion on Article 16.  In addition, OLC examined the legislative history of the MCA, which the President had sought, in part, to ensure that the CIA program could go forward following Hamdan, consistent with Common Article 3 and the War Crimes Act.  OLC observed that, in considering the MCA, Congress was confronted with the question of whether the CIA should operate an interrogation program for high value detainees that employed techniques exceeding those used by the U.S. military but that remained lawful under the anti-torture statute and the War Crimes Act.  OLC concluded that while the passage of the MCA was not conclusive on the constitutional question as to whether the program “shocked the conscience,” the legislation did provide a “relevant measure of contemporary standards” concerning the CIA program and suggested that Congress had endorsed the view that the CIA’s interrogation program was consistent with contemporary practice.

To make a long story short, since the Military Commissions Act showed that Congress implicitly said there should be a CIA interrogation program — hey, its “conscience” wasn’t “shocked” –  it was perfectly acceptable for OLC to bless the contours of a CIA interrogation program that was forged before a host of Supreme Court decisions and acts of Congress introduced additional-but-not-so-specific protections of basic detainee rights. Unless I’m misunderstanding something, the Senate narrative essentially says that the OLC considers nothing in the legislative and judicial record in the two years since it issued its last opinions on the CIA program to have warranted any material changes to the legal basis for it.

And, remember, OLC has a point: the 2006 Military Commissions Act, like the 2005 Detainee Treatment Act before it, carved out exemptions for the CIA. Here’s CIA Director Michael Hayden’s statement the day Bush signed the 2006 act:

It gives CIA the legal clarity and legislative support necessary to continue a program that has been one of our country’s most effective tools in the fight against terrorism. The Act ensures that we can detain and interrogate key terrorist figures in the future, if and when the need arises. We can be confident that our program remains – as it always has been – fully compliant with U.S. law, the Constitution, and our international treaty obligations.

Thanks, John “this legislation ensures that we respect our obligations under Geneva” McCain!

In July 2007, the President issued Executive Order 13440, which interpreted the additional obligations of the United States imposed by Common Article 3 of the Geneva Conventions.  In conjunction with release of that Executive Order, OLC issued a legal opinion analyzing the legality of the interrogation techniques currently authorized for use in the CIA program under Common Article 3 of the Geneva Conventions, the Detainee Treatment Act, and the War Crimes Act.

The Washington Independent broke the story of the existence of that memo yesterday. This is the first clear, declarative public acknowledgement by any government authority that the 2007 OLC memo exists. Here’s an interesting omission that the Senate intelligence panel found within it:

Because waterboarding was not among the authorized list of techniques, the 2007 OLC opinion did not address the legality of waterboarding.  OLC therefore has not considered the legality of waterboarding under either of the two provisions that have been applied to the CIA’s treatment of detainees since the passage of the Detainee Treatment Act in December of 2005: Common Article 3 of the Geneva Conventions and the War Crimes Act, as amended by the MCA.

The panel ends its narrative by reiterating that the Obama administration has said “the United States Government may not rely on interpretations of the law governing interrogations issued by the Department of Justice between September 11, 2001, and January 20, 2009.”

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In County of Sacramento v. Lewis, the Supreme Court said that what “shocks the conscience” and therefore violates the right to substantive due process is conduct that lies beyond the “decencies of civilized conduct”; is “so ‘brutal’ and ‘offensive’ that it does not comport with traditional ideas of fair play and decency”; or “interferes with rights ‘implicit in the concept of ordered liberty’ ”.

It’s hard to imagine how slamming a prisoner’s head repeatedly against a wall, drowning him on a waterboard, depriving him of sleep (and adequate food) for more than five days straight or cramming him into a “confinement box” with insects he believed were deadly could possibly comport with anybody’s notion of “civilized conduct,” “fair play and decency” or “ordered liberty.”

So how did former OLC head Steven Bradbury and his team of lawyers who wrote the memos reach that conclusion?

They assumed that the government interest at stake – preventing another terrorist attack – justified the conduct, even if, on its face, that conduct looked clearly uncivilized, indecent, and, well, conscience-shocking. And, they assumed that torture and abusive interrogation tactics would be effective at preventing another terror attack.

In fact, according to the May 30, 2005 memo, the lawyers were told just that by John Rizzo, senior deputy General Counsel for the CIA, to whom the memo was addressed:

Significantly, you have informed us that the CIA believes that this program is largely responsible for preventing a subsequent attack within the United States.

But where did that belief come from, and was it reasonable?

Expert studies have shown repeatedly that there is no evidence to support the claim that torture and other abuse of detainees will actually lead interrogators to obtain reliable and valuable information. In fact, as Human Rights First has pointed out, the U.S. Army’s own field manual on interrogation, published in September 2006, states that torture “is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the [human intelligence] collector wants to hear.” As veteran FBI interrogator Joe Navarro has said repeatedly: “the only thing torture guarantees you is pain.”

The Bush administration has never proven anything to the contrary. Just two weeks ago, former Bush Administration officials who monitored the interrogation of high-level terror suspect Abu Zubaydah told reporters for The Washington Post that “not a single significant plot was foiled” as a result.

The May 30 Bradbury memo even acknowledges the tenuousness of its own assumption. In footnote 28, for example, it says:

This is not to say that the interrogation program has worked perfectly. According to the IG report, the CIA, at least initially, could not always distinguish detainees who had information but were successfully resisting interrogation from those who did not actually have the information….On at least one occasion, this may have resulted in what might be deemed in retrospect to have been the unnecessary use of enhanced techniques.

In short, the OLC lawyers reached their legal conclusions that these torture techniques did not violate the law by making assumptions that appears to have been wholly unsubstantiated – that the techniques would be effective.

Because the assumption is invalid, the legal conclusion is unsupported. And it provides strong evidence that the legal memos were not written “in good faith”, as the law requires, and the senior officials who relied upon them likely knew that. If that’s the case, then the memos don’t provide the absolute defense – or “golden shield” – that Bush officials have claimed.

Clearly, further investigation is warranted.