Marc Ambinder

Clash With Congress: Obama Threatens Veto Of Intelligence Funding Bill

Wed,08 Jul 2009 20:47:08 GMT

The Obama administration has threatened to veto the funding bill for US intelligence agencies because the House included a provision that would increase the number of members who receive briefings on highly secretive covert operations.

The provision, section 321 of the Intelligence Authorization Act of 2010, would require intelligence agencies to brief all members of the House and Senate intelligence committees virtually every sensitive classified project, including "special access programs" that have traditionally been orally briefed to the "Gang of 8," the chairs ranking members of the intel committees, the Speaker and Minority Leader of the House of Representatives, and the majority and minority leaders of the Senate.

The same provision allows Congress, not the administration, to restrict the briefings in extraordinary circumstances.

This seemingly small change to the law is what's provoked the veto threat. The Obama administration, like all previous administrations of the modern era, believe that the president, and only the president, has the power to determine what constitutes national security information and, even more vitally, what safeguards ought to be in place to protect the information.

Section 321 chips away at that power and simultaneously expands the scope of the briefings that the administration would be required to give.

Catastrophic Attacks Disrupted.... And Then What?

Wed,08 Jul 2009 20:19:06 GMT

On the knotty question of prolonged or indefinite detentions, is there a middle ground between those who want to codify an expansion of oresidential power and those who believe that existing laws, fully exploited, are sufficient? Into the debate comes Madeline Morris, a former senior Defense Department detainee affairs lawyer. She's circulating a proposal called the Counterterrorism Detention, Treatment and Release Act, which she contends will satisfy constitutional, moral and legal criteria laid out by President Obama.

Morris sides with those who believe that existing criminal statutes are appropriate for most, but not all, terrorism prosecutions. But she is sympathetic to the worry that creating a forward-looking detention framework that does not retroactively address -- or account for -- the detention and disposition of Guantanamo detainees, would be illegitimate and constitutionally troublesome.

Detainees -- those "engaging in armed catastrophic" attacks against the U.S. -- would be held in conditions equal to detention facilities for prisoners of war. (That means, in essence, that they could not be held in supermax facilities.) The appeal of this approach is that it avoids a definitional battle over who gets sent where. Interestingly, Morris locates the detention authority in the judicial branch. Here's how it would work:

White House Very Skeptical About "Second Stimulus"

Wed,08 Jul 2009 19:37:54 GMT

More Congressional Democrats voiced concerns today about the pace of the economic recovery, but the White House is holding firm against the idea of a second major stimulus intervention. Two administration officials say the President will wait at least six months before deciding whether to support a second stimulus package. Still, some administration officials and allies concede that two tactical errors were committed during the stimulus battle, although they were perhaps unavoidable. As the Vice President said this weekend, White House economists underestimated how bad things were (as did everyone else, of course, aside from a privileged few.) Secondly, and perhaps more pertinent to today's debate, officials arguably oversold the stimulus package's inherent efficiency. Their words and deeds differed; the administration was careful to say that the economic recovery wouldn't be instantaneous, but, at the same time, it was politically critical to sell the stimulus by highlighting how quickly certain monies would be spent. ("Shovel ready" conjures up a picture of a worker, with a shovel in hand, waiting for the green light. The reality is more prosaic.)

Detainee Policy: Inside The Task Force

Wed,08 Jul 2009 13:47:56 GMT

On the day after his inauguration, President Obama instructed his attorney general and chief legal advisers to create a new framework for detention that would be binding upon his predecessors and consistent with American law. For six months, the task force's small professional staff and its members have met in secure Justice Department conference rooms.
The participants are diverse: there are tough-as-nails intelligence types. FBI interrogators who've been on the front lines. Academics. Civil libertarians. State Department officials who are sensitive to international opinion. Defense department attorneys who live and breath the Uniformed Code of Military Justice.

To illustrate the central dilemma this team must consider, some task force staff members have created a semi-fictional scenario involving a most-wanted terrorist bad guy who is located in a foreign country.

Somewhat tetchily, a few of them have chosen Thailand, a country known to have permitted the CIA to operate a black prison site.

The scenario proceeds roughly as follows: in cooperation with Thai intelligence, the United States discovers that a known al Qaeda operative is noodling around in Chang Mai.

Thailand, of course, is not contiguous to any battlefield. Preventing this person from committing an act of terrorism is a paramount national security concern.

But the laws are very ambiguous and so are the ethics. It is not at all clear that the person can be arrested by Thai authorities, extradited to the U.S. and then tried in a federal court. Perhaps the intelligence was obtained through extraordinary methods; perhaps a foreign government obtained the location (later validated) through torture; perhaps the U.S. has a very well-placed human source inside the Thai-terrorism nexus. What to do? The Bush administration had a simple answer: send in the commandos -- i.e., the Joint Special Operations Command -- kidnap them, or kill them, or have them transferred to military custody and parked in a cell for the rest of their lives. The Bush administration used JSOC teams to kidnap or kill suspected terrorists in Yemen and Somalia.

In the task force's hypothetical example, the person has not yet committed a terrorist act against the United States but does belong to a terrorist organization. In theory, the person could be captured and held by the United States under the authority Congress granted to the President in its 2001 authorization for the use of military force.

However, the law is also fairly plain about geography: the terrorist in Thailand who has yet to commit an act of terror (one can be a terrorist without acting on the impulse) is not covered by the AUMF and may not be covered by U.S. criminal law either. So what's a president to do? Sending in the special ops commandos is quick and efficient, but it draws on an as-yet untested claim that the president has the inherent authority to kidnap and/or kill anyone his executive branch deems to be a threat. Obama, in a recent AP interview, doesn't like this option. It is the apogee of the unitary executive theory.

And yet, the president has a constitutional duty to do something, and he has a moral imperative to prevent an attack on the United States.

On first glance, the laws of war and criminal law seem inadequate. That's why several scholars have proposed to codify the president's authority to capture and detain threats to the country but do so in a way that involves the political institutions and does not circumvent them. Proposals being floated include special national security courts, or periodic status reviews. Congress would facilitate the creation of these mechanisms by passing a law. The argument in favor of this approach proceeds from the assumption that the president does have the authority to do this, but that he lacks legitimacy unless he involves the other branches of government and cedes some of his power.

There's a big legal problem with this approach. As lawyers for detainees are finding out, the judiciary branch has been extraordinarily deferential to the executive branch when it considers matters of national security, especially the question as to whether something or someone constitutes a national security threat. Almost without hesitation, courts, up to and including the Supreme Court, have given the executive branch an enormous degree of latitude. Legislation that would question this presidential power -- the power to define national security threats -- would face an immediate court challenge; it is hard to see the White House signing off on a proposal that would throw out 50 years of precedent and take away authority that presidents before George W. Bush have claimed.

In May, some members of the task force asked two outside experts, Kate Martin and Ken Gude of the Center for National Security Studies and the Center for American Progress to submit a memorandum on the Thailand question and the scope of the president's authority.

For Gude and Martin, the question of whether the president has the authority to indefinitely detain untriable Guantanamo Bay-held combatants is moot at this point. Hesitatingly, they concede that the decisions made by the Bush administration have tied Obama's hands very snugly.

"We respectfully urge that consideration of such cases should not be the basis for adopting far-reaching policies with substantial counterterrorism costs that are likely to far outweigh any short-term benefits from continuing to detain such individuals," they argue in the brief, which was obtained by the Atlantic.

But they part company on the critical question of whether the president needs any additional authority. They do not believe there is anything terribly magical about terrorism so as to jerry-rig any new court review or supra-congressional authority onto the existing cannons of law and practice. Any preventative detention system, they argue, is not only "illegitimate" from a legal perspective, it will be seen as such by the world, thereby exacerbating the climate that allows terrorists to recruit against America.

So what can the president do in the case of the Thai would-be terrorist? Three options. He can ask the Thai government to detain and try the man. America's image as the world's antiterror cop easily morphed into something much worse: the image of America being at war with Muslims. Having other countries participate in the trials and detentions of terrorist suspects would internationalize the concept of antiterrorism, and it would prevent these countries from using America's eagerness to fight terror as a way to kick out some of their undesirable political dissidents.

Or, the President could instruct the FBI to build a case -- a parallel case -- against the suspect. This would take more time and lots of resources, but it would certainly legitimize the capture and detention of a dangerous person. The FBI is, in fact, working to build many cases like this right now because of a similar imperative to try as many Gitmo detainees in federal courts as possible.

Or, the President could try something novel: the CIA, or the FBI, could inform the terrorist that he or she is being monitored. Britain has employed this tactic on occasion, and is has stopped many plots. It's dangerous, of course, and may only lead to the terrorist in question becoming more secretive and paranoid. But it's an option.

The task force will present its conclusions to the White House in a few weeks. Most likely, it will outline a variety of options consistent with the president's charge. Where is Obama leaning? The answer depends on whether he believes that modern terrorism is a sui generis threat; whether the granting or codifying of a new executive detention authority will be abused in the wrong hands; whether the current law is sufficient to deal with the problem. It also matters, quite frankly, who gives him advice.

My sense is that the President hasn't decided yet. That presents an opportunity for everyone -- lawyers, activists, ordinary citizens -- to influence one of the most important decisions Obama will make.

The Spy Who Tweeted Me

Wed,08 Jul 2009 12:26:51 GMT

This appears to be the authentic Twitter avatar of a man named Alexander Allan, who, as head of Britain's Joint Intelligence Committee, is that nation's spy chief. (The job is analogous to the Director of National Intelligence.) He's lived a fascinating, tragic, and mystery-filled life. And he's a Deadhead, to boot.

Terrorism Law Update: Jeppesen, Al-Haramin, And State Secrets

Tue,07 Jul 2009 20:54:12 GMT

The ACLU filed its argument opposing an en banc hearing for the major state secrets privilege case, Mohamed et. al. v. Jeppesen DataPlan. In May, the Justice Department urged the 9th Circuit to overturn the decision of three of its members that the case, which involves Jeppessen's role in the government's extraordinary rendition program, should proceed. The Bush administration and the Obama administration have argued that it cannot, for reasons of national security. The Obama administration's position is at odds with the President's official position on the state secrets privilege -- he does not believe it ought to be used to throw out cases before they begin -- and the administration fears a Supreme Court battle.

Are Americans Becoming More Conservative? They Think So, But...

Tue,07 Jul 2009 19:30:26 GMT

Conservatives trumpet, and liberals pooh-pooh, this latest Gallup survey of American ideological self-assessment. It includes that although Americans say they're becoming more conservative, they're not voting that way, and they're not acting that way. I think George Will's classic saying is relevant here: Americans tend to be temperamental conservatives and operational liberals.

An Ohio Outlier?

Tue,07 Jul 2009 18:37:18 GMT

I asked a White House official to respond to a poll from Quinnipiac of adults in Ohio showing a fairly significant downturn in President Obama's job favorability ratings. More data is needed, the official said, before conclusions can be made. That's true. But you can bet that it was included in their morning reading. For those who want to know, the pollsters asked about Obama before they asked about the voters' perceptions of the economy in the state...although after they asked 24 other questions about state political races. Nationally, Obama's approval ratings among adults are averaging around 57%, with his unfavorables holding steady at about a third of the public. If anyone comes across other reliable state polling on Obama's job approval numbers, please send them along.

Palin Uses Surge In Interest To Build Political List

Tue,07 Jul 2009 17:05:46 GMT

A Google source points me to the datum that searches for Gov. Sarah Palin have spiked dramatically since her announcement last week, indeed, to their highest levels since the election. If you search for "Sarah Palin" on Google, you'll see an advertisement for her PAC, which is collecting thousands of e-mail addresses and donations. "International or not," the source says, "her team is capitalizing on her interest to build a (potentially) enormous list of supporters."