Intelligence

By Peter Feaver

President Obama has said that he is very angry about the leaks coming out of Afghan Strategy Review 2.0:

"I think I'm angrier than Bob Gates about it," Mr. Obama replied. "We have deliberations in the situation room for a reason; we're making life and death decisions that affect how our troops are able to operate in a theater of war. For people to be releasing info in the course of deliberations is not appropriate."

"A firing offense?" Reid inquired.

"Absolutely," Mr. Obama responded.

His anger is understandable, and I have some sympathy for it. It is hard enough to decide what to do without having these internal deliberations play out on the front pages of the papers. Frustration over leaks is an occupational hazard of working in any administration. Every member of Shadow Government can cite multiple times when the president or other principals expressed similar anger during the Bush years.

Still, my sympathies are not unqualified. The longer the review drags on, the more unrealistic it is to expect that the process can continue to be leak-free. The president is right to want to deliberate leak-free, and the president has the right to extend the process as long as he wants, but at some point -- and I don't know when that point is, but now that we are around day 92 82 since McChrystal initially filed his report, we can safely say we are past that point -- the blame for the leaks must be a shared matter. (Editor's Note: It is 82 days as of today and won't be 92 days until after the Monday after the Thanksgiving holiday, which is when the White House hints it will announce a decision ... unless they decide to spring the announcement on the ultimate of late-Friday dumps, Black Friday, in which case it would only be slightly less than 92 days.)

And speaking of assessing blame, with the exception of the original leak of the McChrystal report (the provenance of which is still debatable and I am losing confidence in my own hunch that it was Holbrooke or someone connected to him), it is not too hard to tell who is doing most of the leaking: very senior White House folks (I am thinking assistant-to-the-president-level, and higher). The most informative stories have outlined in some detail the objections raised by VP Biden and Chief of Staff Emanuel to the bigger footprint options. Those stories frame the Biden/Emanuel objections in very favorable terms. Most of the leaks (again with the exception of the initial McChrystal report leak) have had the effect of making it slightly more difficult for Obama to pick the option most favored by McChrystal and the other senior military brass.

I suspect that the president, the vice president, and the White House chief of staff have a pretty good idea who are the unnamed SAO's (senior administration officials) in many of the more detailed stories. And I am very confident that the more junior level officials on the Obama national security team believe that the top rank folks (who have the widest latitude for talking to the press) know who are those SAO's.  

So my bottom line is that I expect that the Obama SAO's will not be deterred from leaking, despite the president's strongly expressed outrage.

Pete Souza/White House via Getty Images

By Thomas G. Mahnken

One topic that is likely to arise during President Obama's trip to Asia, if not in his meetings in Beijing, is the continuing modernization of the Chinese military. Asian leaders are privately, and increasingly publicly, concerned about China's growing military might and what they see as a failure of the United States to respond. This year's Australian defense white paper, for example, portrays a future in which China contests American primacy in Asia and beyond. When one of the United States' closest allies expresses such concerns, Washington should listen.

According to at least one high-ranking official, the United States has systematically underestimated the pace and scope of Chinese military modernization for years. On Oct. 21 in an interview with the Voice of America, the incoming Commander of U.S. Pacific Command (USPACOM), Admiral Robert F. Willard, USN, told reporters that, "In the past decade or so, China has exceeded most of our intelligence estimates of their military capability and capacity, every year. ... They've grown at an unprecedented rate in those capabilities. And, they've developed some asymmetric capabilities that are concerning to the region, some anti-access capabilities and so on." Willard should know. Prior to becoming the USPACOM commander, he was in command of all U.S. naval forces in the Pacific; before that, he was Vice Chief of Naval Operations.

Willard's observation should be cause for concern, but is not a surprise. Intelligence organizations have a tendency to underestimate rising powers. As I discuss in my book, Uncovering Ways of War, U.S. Army and Navy intelligence in the period between the two world wars underestimated the growth of the Japanese military power not because of racial bias or ethnocentrism, but rather because of the very real tendency to look back on Japan's modest military capabilities and project them into the future. As a result, American intelligence organizations overlooked a number of areas where the Japanese military innovated, failures that cost the United States and its allies dearly in World War II.

I suspect that the same pathologies may be at work today regarding China. The People's Liberation Army of the 1980s and 1990s was hardly first-rate. In recent years, however, China has made real strides, including the testing of an anti-satellite weapon in July 2007 and the development of an anti-ship ballistic missile designed to attack U.S. carrier strike groups. Outside a small circle of cognoscenti, however, perceptions of Chinese military power have failed to keep pace with this reality.

If we are in danger of underestimating Chinese military power, China's leaders are in danger of overestimating it. Some portions of the Chinese military have not seen action since China's 1979 war with Vietnam; others have not seen combat since the Korean War. Although China is in the process of fielding increasingly capable weapons, the military effectiveness of the PLA is very much an open question.

The United States needs to do more to understand the Chinese military. The PLA intently studies the U.S. military; the U.S. military lacks a similar curiosity about them. That needs to change. It would be worthwhile, for example, to translate and make available to scholars a broader array of Chinese writings about military affairs. In addition, the U.S. military needs to devote greater attention to understanding the Chinese military, as well as the strategic and operational challenges it poses. Doing so will not, as some assert, preordain conflict with China. To the contrary, a better understanding of the Chinese military should help us avoid misperception and bolster deterrence. Such an effort should include our allies and friends in the region, who have their own perspectives and their own concerns with China's military expansion.

STR/AFP/Getty Images

By Dov Zakheim

There are several issues at play regarding the so-called secret CIA programs to target and kill al-Qaeda leadership. The first is whether the CIA should have told the Congress what it planned prior to actually fleshing out a complete program. One could argue that the Congress, or at least its senior leaders, should have been informed immediately upon the CIA's consideration of such an effort. But one could argue to the contrary that, until the program was fully formulated -- with the various legal, international, and other concerns fully resolved -- there was nothing to inform the Congress about. Indeed, one might assert that informing the Congress -- with the attendant risk of leaks -- would have damaged that CIA program prematurely, and, far more importantly, would have sullied America's reputation abroad on the basis of a hypothetical policy that might never have come into being. The proof of this latter consideration is that, in the end, the program never got off the ground.

As for Mr. Cheney, while the press delights in attacking him, and he appears to delight in goading the press, he should not be at the center of this issue. Rather, the debate should be about both whether the United States can and should even consider a program to kill those who wish to massacre thousands upon thousands of our citizens, and at what point in the process of formulating such a program the Congress should be informed.

Reasonable people can debate these issues. For my part, I feel that with respect to sensitive programs of this nature, the probability of a leak resulting from informing the Congress about them must be balanced against the likelihood of their actually being approved for execution. When a program's fate is highly in doubt, the risk of a leak is high, and the consequences of that leak certain to be highly damaging. Thus, it may be better to wait until the program is more fully defined before informing the Congress of its existence.

Ultimately, the question of whether to mark terrorists for death will not really go away until al-Qaeda and its copycat organizations are defeated. What Mr. Cheney may or may not have done nearly a decade ago is a sideshow in this debate, nothing more.

By Philip Zelikow

A recent New York Times story and today's column by David Ignatius have surfaced a dispute between the DNI and the director of the CIA about responsibilities for the selection of the "chief of station" at overseas posts.  (Tradtionally the chief of station is the senior CIA official at the post and oversees intelligence liaison relationships and operations in that country, as part of the country team headed by the ambassador.)

The DNI wishes to be able to select the head intelligence community representative in the country. The CIA director wants to retain his traditional authority to appoint all station chiefs. Ignatius argues, defending the CIA position, that the CIA does overseas operations and liaison relationships, so the CIA ought to look after the station chiefs.

The White House will ultimately settle this dispute. I write only to help readers understand why this issue is more complicated than one might think after reading the Ignatius argument.

First, overseas operations are much more than the human intelligence (HUMINT) collection that CIA manages. In some countries, the main overseas work -- and staffing to support it -- may concern signals intelligence or other technical operations that are managed by the National Security Agency or the National Reconnaissance Office, among others. In some cases the HUMINT role may also be eclipsed by defense intelligence relationships that are usually looked after by the Defense Intelligence Agency and the embassy's Defense Attache (which involves a set of challenging coordination problems in its own right). Then there are FBI/Legatt issues, Treasury issues, DHS issues, and so on.

Second, even where the CIA's role is large, even dominant, for the intelligence mission being carried out in the country, the CIA's role is rarely the whole story. Thus the station chief needs to be an interagency manager on behalf of the intelligence community, or else that job will be bumped to the ambassador or, more likely, get bumped back to Washington. In Washington, the DNI has significant authority to resolve the turf battles, but may not have direct authority over the station chief who should have been part of the solution, not part of the problem. Usually interagency issues are worked out pretty effectively in the field. But there are problem cases. Since the station chief should really be the representative of the intelligence community, not just a representative of one component of it, the DNI has a legitimate concern to ensure that station chiefs are appointed and managed in a way that conforms with their responsibility.

Third, it is the DNI's responsibility to manage the foreign liaison relationships. These relationships are a huge -- and little known -- dimension of U.S. intelligence policy of every kind. Having learned some lessons from years of initial experience with the new DNI structure, the U.S. government sought to clarify responsibility for managing these foreign relationships. After months of arguments and drafting exercises (involving the current Secretary of Defense and former CIA director, among others), the result was codified last year in a presidential Executive Order 13470 (30 July 2008). 

That order states that the DNI "may enter into intelligence and counterintelligence arrangements and agreements with foreign governments and international organizations." The DNI "shall formulate policies concerning intelligence and counterintelligence arrangements and agreements with foreign governments and international organizations." The DNI "shall align and synchronize intelligence and counterintelligence foreign relationships among the elements of the Intelligence Community to further United States national security, policy, and intelligence objectives."

So one can see why the DNI might feel some responsibility for the appointment of the intelligence community's overseas representatives. President Obama is certainly free to rewrite this executive order. If he and his advisers think it is worth their time to revisit this Executive Order, they will learn a lot about why it was written this way.

The most worrisome aspect of the current dispute is not its substance. It is an interesting problem, but there are several ways to work it out. One solution might draw on the role of the Secretary of State to the selection of ambassadors. The Secretary always recommends, usually gets her wish, but does not have the final power of decision.

Instead, the troubling aspect of the case is what it appears to say about the relationship between the DNI and the CIA director. That relationship is vital to the effectiveness of the intelligence community. Even before Obama took office, experience had shown why a president should take the time to be sure his appointees in these two positions work well together and understand their respective roles in the broader system.

By Philip Zelikow

I first gained access to the OLC memos and learned details about CIA's program for high-value detainees shortly after the set of opinions were issued in May 2005. I did so as Secretary of State Condoleezza Rice's policy representative to the NSC Deputies Committee on these and other intelligence/terrorism issues. In the State Department, Secretary Rice and her Legal Adviser, John Bellinger, were then the only other individuals briefed on these details. In compliance with the security agreements I have signed, I have never discussed or disclosed any substantive details about the program until the classified information has been released.

Having been the executive director of the 9/11 Commission, I'm aware of what some of these captives did. The Commission wondered how captives were questioned (for details on that, see this previously disclosed report), and the matter is now the subject of a federal criminal investigation by special prosecutor John Durham. Nonetheless, the evidence against most -- if not all -- of the high-value detainees remains damning. But the issue is not about who or what they are. It is about who or what we are.

Based on what had earlier been released, I have offered some general views on "Legal Policy for a Twilight War." With the release of these OLC memos, I can add three more sets of comments, each of which could be developed at much greater length.

1. The focus on water-boarding misses the main point of the program. 

Which is that it was a program. Unlike the image of using intense physical coercion as a quick, desperate expedient, the program developed "interrogation plans" to disorient, abuse, dehumanize, and torment individuals over time. 

The plan employed the combined, cumulative use of many techniques of medically-monitored physical coercion. Before getting to water-boarding, the captive had already been stripped naked, shackled to ceiling chains keeping him standing so he cannot fall asleep for extended periods, hosed periodically with cold water, slapped around, jammed into boxes, etc. etc. Sleep deprivation is most important. 

2. Measuring the value of such methods should be done professionally and morally before turning to lawyers.

A professional analysis would not simply ask: Did they tell us important information? Congress is apparently now preparing to parse the various claims on this score -- and that would be quite valuable. 

But the argument that they gave us vital information, which readers can see deployed in the memos just as they were deployed to reassure an uneasy president, is based on a fallacy. The real question is: What is the unique value of these methods? 

For this analysis, the administration had the benefit of past U.S. government treatment of high-value detainees in its own history (especially World War II and Vietnam) and substantial, painful lessons from sympathetic foreign governments. By 2005, the Bush administration also had the benefit of what amounted to a double-blind study it had inadvertently conducted, comparing methods that had evolved in Iraq (different Geneva-based rules, different kinds of teams) and the methods the CIA had developed, with both sets being used to against hardened killers.

Opponents should not overstate their side either. Had a serious analysis been conducted beforehand (it apparently was not), my rough guess is that it might have found that physical coercion can break people faster, with some tradeoff in degraded and less reliable results.

Which underscores the importance of moral analysis. There is an elementary distinction, too often lost, between the moral (and policy) question -- "What should we do?" -- and the legal question: "What can we do?" We live in a policy world too inclined to turn lawyers into surrogate priests granting a form of absolution. "The lawyers say it's OK."  Well, not really. They say it might be legal. They don't know about OK.

3. The legal opinions have grave weaknesses. 

Weakest of all is the May 30 opinion, just because it had to get over the lowest standard -- "cruel, inhuman, or degrading" in Article 16 of the Convention Against Torture. That standard was also being codified in the bill Senator John McCain was fighting to pass. It is also found in Common Article 3 of the Geneva Conventions, a standard that the Supreme Court ruled in 2006 does apply to these prisoners. Violation of Common Article 3 is a war crime under federal law (18 U.S.C. section 2441), a felony punishable by up to life imprisonment. (The OLC opinions do not discuss this law because in 2005 the administration also denied the applicability of Common Article 3.)

The OLC holds, rightly, that the United States complies with the international standard if it complies with the comparable body of constitutional prohibitions in U.S. law (the 5th, 8th, and 14th Amendments). Many years earlier, I had worked in that area of the law. I believed that the OLC opinions (especially the May 30 one) presented the U.S. government with a distorted rendering of relevant U.S. law. 

At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn't entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that:  The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department's archives. 

Stated in a shorthand way, mainly for the benefit of other specialists who work these issues, my main concerns were:

• the case law on the "shocks the conscience" standard for interrogations would proscribe the CIA's methods;

• the OLC memo basically ignored standard 8th Amendment "conditions of confinement" analysis (long incorporated into the 5th amendment as a matter of substantive due process and thus applicable to detentions like these). That case law would regard the conditions of confinement in the CIA facilities as unlawful.

• the use of a balancing test to measure constitutional validity (national security gain vs. harm to individuals) is lawful for some techniques, but other kinds of cruel treatment should be barred categorically under U.S. law -- whatever the alleged gain.

The underlying absurdity of the administration's position can be summarized this way. Once you get to a substantive compliance analysis for "cruel, inhuman, and degrading" you get the position that the substantive standard is the same as it is in analogous U.S. constitutional law. So the OLC must argue, in effect, that the methods and the conditions of confinement in the CIA program could constitutionally be inflicted on American citizens in a county jail. 

In other words, Americans in any town of this country could constitutionally be hung from the ceiling naked, sleep deprived, water-boarded, and all the rest -- if the alleged national security justification was compelling. I did not believe our federal courts could reasonably be expected to agree with such a reading of the Constitution.

By Phil Zelikow

I will have more to say soon about interrogation policies in the Bush administration and the recently renewed debate over them, but for now I'll just say this: I am not eager to see any government officials prosecuted for crimes because of their zeal to protect their country. But crimes committed for worthy motives are still crimes, and we have institutions to sort this out.

So has anyone beside me found it troubling that President Obama is making announcements on who should be prosecuted for possible crimes? Whatever one's view of the matter, didn't the administration ardently announce its dedication to depoliticizing the Department of Justice? So why is it proper for the president to tell Attorney General Eric Holder what he should conclude?

There seem to be four possibilities here:

1. No unlawful conduct occurred. That judgment should, at least initially, be made by the Attorney General, free from political influence.

2. Unlawful conduct occurred, but the suspects have a credible defense -- that before undertaking their unlawful conduct, they relied in good faith on authoritative (though in retrospect, mistaken) legal opinions that the planned conduct would be lawful, and these opinions were also issued in good faith. Again, that judgment should be made, at least initially, by the attorney general, free from political influence.

3. Unlawful conduct occurred, and the legal opinions are not an adequate defense. Federal prosecutors, regular or specially appointed, then go to work. Again, the prosecutorial judgments should be free from inappropriate political influence.

4. Unlawful conduct occurred, and the legal opinions might not be an adequate defense. But President Obama decides to issue a blanket pardon for any possible criminal activity.

Or you have option #5, in which the president does not exercise his pardon power but instead, in effect, tells his attorney general what conclusions he should reach about whether federal officials broke the law.

Can you imagine what folks would say if a Republican president exercised option #5? I wish President Obama would just play this straight. He also does no favor to suspects if he politicizes the question of their innocence.

By Christian Brose

An important little detail went mostly uncovered from yesterday's Senate hearing of the Director of National Intelligence, Adm. Dennis Blair, and the head of the Defense Intelligence Agency, Lt. Gen. Michael Maples. You can watch the whole hearing if you like, but what I found interesting was that Maples had this to say in response to questioning by Sen. Carl Levin:

The Quetta shura is operating openly, as you know, in Quetta. I believe it is more in relation to the effect on the Pakistani population, in particular the Pashtun population in Pakistan that causes the Pakistani government to move at a slower pace. And they have not taken action against that Quetta shura.

What's noteworthy about this is not that the information is new. It's definitely not. It's that, as best I can recall, it has never been acknowledged publicly by a senior member of the U.S. government.

Now that the U.S. government has gone on record that the Quetta shura, essentially Mullah Muhammad Omar and the rest of the Taliban's most senior leadership, is operating openly in Pakistan, it won't be long before policymakers are asked some pretty tough and uncomfortable questions. Like, what are you doing about the fact that our own government now admits that the Taliban's nerve center is functioning not in Pakistan's tribal areas, but in the capital of a major Pakistani province, and not only does the Pakistani government know all about it, it's not doing anything to address it? Furthermore, what exactly are the billions of dollars that we are giving to the Pakistani government getting us exactly?

The answers to these questions (if good ones exist) are no better than the policy options we have. One response, which Vice President Biden and others have advocated, is making U.S. assistance to Pakistan conditional on the government's performance. This is a nice idea, and some form of it may work in a "do more to get more" sort of way. But the challenge of imposing conditions on allies is not new; nor is it easily resolved. You're essentially making a threat: "do more and do better ... or else." But there is no "or else" with Pakistan. The threat is empty, and both sides know it.

No matter how poorly the Pakistani government performs, the United States will continue to give it assistance, because the potential downsides of not doing so are worse. And now that we have admitted publicly that things in Pakistan really are as bad as we always knew they were, I don't envy the member of the Obama administration who will have to respond to the tough questions that will inevitably follow.

By Dov Zakheim

Leon Panetta may know very little about intelligence, but he knows a lot about managing difficult organizations. After all, he was Chief of Staff in a White House that was not noted for its organizational rigor. As Director of the Office of Management and Budget, he had to say "no" more often than he said "yes." He will have to do more of the same in a CIA that is one and the same time demoralized, yet the subject of bitter criticism for behaviors than seem to stretch the boundaries of legality.

The CIA is a tough organization. It has done in many would-be reformers, both on the Right and the Left. No doubt there will be some among the Agency's veterans who will view Panetta as another outsider around whom they can run circles, while newer, younger Agency types, with only the past few years as their guide, may resent what they might see as "do-gooder" meddling with their organization.

But life has changed for the CIA. The one major legacy it will inherit from the Bush years is that it no longer has the same direct line to the President it once did. Rather, its Director is subordinate to the Director of National Intelligence, pushing the organization into the background. In addition, the CIA will be carefully watched by a Democratic Congress that has been itching to tighten oversight screws but was prevented from doing so by a Republican Administration. The Obama team is unlikely to provide the CIA with the same political cover.

So those tough veterans, and those spirited newbies are in for a shock. They may try to run circles around the new CIA boss, but they will then hit the brick wall of Congress. Ironically, Panetta might be a reformer, but with his years in the Congress as well as the White House, he may actually be a better and more successful Agency leader than one who might have come from its own ranks -- someone, say, like Porter Goss.