Tuesday, June 24, 2008

Feingold: ‘Farce’ wiretap deal could be hiding ‘impeachable offense’

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By Nick Juliano

The battle to protect Americans from warrantless wiretaps and hold telecommunications companies accountable is all but lost, Sen. Russ Feingold, a leading critic of President Bush’s likely illegal surveillance programs, said Monday.

The “farce” of a surveillance law deal heralded by House Democratic leaders last week could permanently hide evidence of an “impeachable offense” on the part of President Bush, the Wisconsin Democrat said.

Feingold spoke at the New America Foundation in Washington about the nation’s intelligence needs. He panned an update to the Foreign Intelligence Surveillance Act that quickly passed in the House last week. The Senate is expected to follow suit this year, officially putting the Democratic-controlled Congress’s seal of approval on an administration backed gambit to essentially legalize Bush’s warrantless surveillance program while at the same time letting off the hook phone companies that critics say facilitated the contravention of current law.

“I do think this is a total farce with regard to the immunity [for telecommunications companies]. It basically guarantees the immunity,” Feingold said. “It doesn’t simply have the impact of potentially allowing telephone companies to break the law. It may prevent us from ever getting to the core issue … which is the president ran an illegal program that could’ve been an impeachable offense.”

House Democratic leaders heralded the bill as a “bipartisan compromise” because instead of giving blanket retroactive immunity to telecommunications companies that facilitated the president’s warrantless wiretapping program, it would route the grants of immunity through a district court. As long as the companies could demonstrate to a judge that they were instructed to spy on Americans by the Bush administration they would be spared the trouble of litigating more than 40 pending lawsuits , even though they initiated the surveillance without legally required warrants.

“This is an astonishing giveaway,” Feingold said.

The FISA update passed the House Friday, less than 24 hours after it was released. The bill was crafted after negotiations among moderate Democrats, Republicans, the White House and telecommunications lobbyists. The Senate is expected to pass the bill this week, and Feingold sounded pessimistic about the chances to improve it, although he said he would work with other skeptical senators to try.

Feingold and Sen. Chris Dodd (D-CT) met with Senate Majority Leader Harry Reid on Friday to urge him not to simply rush the new surveillance bill through the Senate. Sen. Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, also has been critical of the proposed FISA update.

“I’m very worried we’re not going to be able to prevail,” Feingold said in response to a question from RAW STORY. “Sen Dodd and I and Sen. Leahy are going to do everything that we can to stop this mistake, but I’m very concerned … that far too many Democrats will vote the wrong way.”

One of those Democrats could be Sen. Barack Obama (D-IL), the party’s presidential candidate. In a statement released Friday, Obama indicated support for the FISA deal, although he said he would work to remove the immunity provision.

“I don’t know what Sen. Obama’s going to do,” Feingold said. “But Democrats should be voting against this.”

Later during a question and answer section, Feingold was asked specifically whether he or Dodd would filibuster the FISA update this week. He said the two met with Senate Majority Leader Harry Reid on Friday to request that the bill not just be “rammed through” the Senate.

“We’ll be requiring key procedural votes, and also taking some time on the floor this week, to indicate the problems of this legislation,” he said. “We’re not just going to let it quickly pass.”

This video is from UStream TV, broadcast June 23, 2008.

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Feingold’s prepared speech focused on confronting foreign intelligence and information gaps. His remarks are reprinted below:

Remarks of U.S. Senator Russ Feingold
Confronting Foreign Intelligence and Information Gaps
The New America Foundation
June 23, 2008
As Prepared for Delivery

Thank you, Steve Clemons, and thanks to all of you here at the New America Foundation for the opportunity to speak at an organization that has a reputation for innovative thinking, and for challenging the status quo when it comes to public policy. The New America Foundation reminds me a little of my home state of Wisconsin - a purple state that, like NAF, transcends the conventional political spectrum.

As some of you may know, I hold open meetings with my constituents every year in every one of Wisconsin’s 72 counties, and I have been doing this since I arrived in the U.S. Senate in 1993. From these meetings – now over 1,100 of them – I have gained a pretty good sense of the interests and concerns of the very diverse group of Americans that I represent.

In the last six years of these listening sessions, foreign affairs generally, and the war in Iraq specifically, have been the number one issue raised. Like so many Americans, the anger and resolve Wisconsinites felt after 9-11 have given way to confusion and frustration at this administration’s disastrous mistake in Iraq.

I hear in my listening sessions how this administration’s focus on Iraq has drained our country’s energy and financial resources, undermined our military readiness, and stymied action on our country’s security and domestic needs. And yet I also sense people’s readiness – their impatience, even — to take on the challenges of our post-9/11 world.

The American people are ready to face these new challenges, but the federal government is not. Nearly seven years after 9/11 we still have not translated the significance of that horrific event – and the responsibility and opportunity it thrust upon us – into a coherent plan of action. Instead, we remain mired in and distracted, politically and financially, by Iraq. As a consequence, many of the same serious problems that made us vulnerable to al Qaeda’s attack — in strategic planning, institutional readiness and allocation of resources — still remain.

My comments today are directed at two fundamental and continuing post 9-11 gaps: a gap in our strategic thinking and a major deficit in our foreign information and intelligence efforts. Until we address these gaps, our country will remain vulnerable here at home.

A Mistaken and Myopic Focus on Iraq

Clearly, the biggest strategic mistake after 9-11 has been the failure to address the threat of al Qaeda head on. Instead, we have conflated al Qaeda with Iraq, and launched a war in Iraq that perpetuates our military, intelligence, diplomatic and fiscal deficits and leaves us exposed - in fact increases our exposure – to very real threats to our domestic safety.

Most Americans now agree that the decision to go to war in Iraq was the wrong response to the attacks of 9-11. Unfortunately, even some political leaders who acknowledge this profound mistake seem to think we have no alternative but to perpetuate it by maintaining a massive open-ended presence in Iraq. I totally reject this position. We cannot construct an effective national security strategy that leaves tens of thousands of U.S. troops in Iraq indefinitely.

The greatest threat to our national security remains al Qaeda, a stateless network of terrorists, whose leaders have found safe haven in Pakistan along the Afghanistan border, and which has a growing number of increasingly dangerous global affiliates.

If there is a geographic base to al Qaeda, it is not in Iraq. As Admiral Mike Mullen, Chairman of the Joint Chiefs, testified before Congress earlier this year “the most likely near term attack on the United States will come from al Qaeda via [its] safe havens in the under-governed regions of Pakistan.” Likewise, the Director of National Intelligence stated in a 2008 intelligence assessment that al Qaeda is now using the Pakistan safe haven to put into place the last elements necessary to launch another attack against the U.S.

The Atlantic Council, chaired by General James Jones, recently concluded:

Afghanistan remains a dangerously neglected conflict. . . . Yet, what is happening in Afghanistan and beyond its borders can have even greater strategic long-term consequences than the struggle in Iraq. Failure would be disastrous for Europe, North America, and the region. Afghanistan and neighboring Pakistan are already breeding grounds for insurgency and terrorism, potentially worse than before September 11th. . . . And what happens in Iraq, Iran and Pakistan will most likely be influenced by conditions in Afghanistan.

The war in Iraq not only diverts the vast bulk of our military resources from the more immediate threats to our safety in places like Afghanistan, it also saps our nation’s financial strength and our ability to invest in our security. Osama bin Laden gave a speech in 2004 in which he stated that his goal was to bankrupt America. That’s al Qaeda’s strategic goal – to bankrupt America — and they have been successful beyond their dreams as we spend ourselves – our money, our people and our global goodwill — into bankruptcy with our misguided focus on Iraq.

If we are to win our struggle against those who seek to do us harm, we must regain global and strategic perspective; reverse this misdirected deployment of our military resources in Iraq; and realign our military, intelligence, diplomatic and other resources to address the threats to our nation’s safety and security that are posed by al Qaeda and its affiliates and sympathizers.

Deficit in Strategic Non-Military Resources

We also need to acknowledge that military resources alone aren’t enough to win this fight. The 2006 Annual Report of the U.S. Intelligence Community states that the predominant, immediate threats to our physical safety are terrorism and the proliferation of weapons of mass destruction. These are asymmetrical threats. Terrorism, and to an important degree proliferation, arise from stateless groups that are not deterred by massive weaponry or large standing armies. So, to effectively confront these threats, we have to move beyond a Cold War security strategy that emphasizes traditional military force.

This is not a partisan issue. What I say here today echoes what’s been said by leaders in this and prior administrations and members of both parties. The 9-11 Commission called for an increase in diplomatic, development and humanitarian tools. My Nebraska colleague, Senator Chuck Hagel, who serves with me on both the Senate Foreign Relations and Intelligence Committees, recently said “You will never win anything in the long run with just military power. When you’re dealing with terrorism, extremism, poverty, despair, those are problems far bigger than the military.” Senators Biden and Lugar, the Chairman and Ranking Member of the Senate Foreign Relations Committee, have both emphasized the need for more effective civilian-led foreign policy efforts, as have Defense Secretary Gates, Former Deputy Secretary of State Richard Armitage and former deputy Secretary of Defense Joseph Nye.

The major strategic gap in our 21st century preparedness, then, is not a missile gap or a gap in military personnel and hardware measured against the armies and arsenals of another state. The major strategic gap is a deficit in the strength and variety of resources we must bring to bear on the asymmetric threats of today. An effective 21st century national security strategy must include improved resources to collect covert and public information, enhance multilateral diplomacy and prevent proliferation of nuclear weapons. Our strategy must also encourage participatory, transparent and fair government around the world, and promote accountability and the rule of law. That’s because these are key American principles, and because ineffective, repressive, corrupt and unresponsive governments can provide breeding grounds for extremism.

Our military increasingly has taken on the roles of our civilian-led institutions because we have massive deficits in those civilian agencies — in financial and human resources; in cultural and language capabilities; and in coherent, interagency strategies to anticipate and respond to threats to our national security.

We have to change our budgetary priorities to address these deficits. Even the greatest military arsenal in the world can’t ensure the safety of populations or resolve conflicts around the globe. And yet we continue to spend hundreds of billions of dollars – borrowed from China, Japan and oil-exporting countries — on weapons systems designed for Cold War conflicts between states with comparable weapon systems.

It is well past time to shift our strategic thinking – and our corresponding expenditures and actions – beyond outdated military tools and solutions. Let me quote Secretary Gates’ budgetary views from his Kansas State University speech: “We need,” he said, “a dramatic increase in spending on the civilian instruments of national security – diplomacy, strategic communications, foreign assistance, civic action and economic reconstruction and development.” One way to increase this much-needed investment in the civilian instruments of national security is to cut wasteful spending on weapons programs that will not help us address our most pressing national security concerns. These include, for example, the F-22 Raptor, which Secretary Gates has specifically identified as a weapons system with limited relevance in counterterrorism operations. It has never flown in Iraq or Afghanistan yet the Air Force continues to ask for more.

I am pleased that the President’s fiscal year 2009 budget attempts to increase the number of Foreign Service officers. As Secretaries Gates and Rice have said, there are more personnel on a single aircraft carrier task force, and more lawyers doing work for the Pentagon, than there are Foreign Service Officers. But, assuming the President’s proposal goes forward, the net gains are unclear, after accounting for the increased demands of Iraq and Afghanistan. The Government Accountability Office reported at the end of last year that, though the Department of State hired over 1,000 Foreign Service officers above attrition levels between 2002 and 2004, that increase was essentially consumed by the staffing demands of Iraq and Afghanistan programs. Even our modest efforts to enhance our civilian capacity, then, are being undermined by Iraq. This is also true with respect to our foreign information and intelligence capacity, to which I will now turn.

Intelligence Gaps

9/11 exposed major gaps in how intelligence critical to our national security was gathered, analyzed and used. The 9/11 Commission reviewed those gaps and began a process of intelligence reform that prompted the creation of the Office of the Director of National Intelligence. The work is far from complete, but at least a framework for change has been put in place.

Another great challenge remains, however — one that is just as critical to fighting al Qaeda, as well as other threats to our national security. And, unlike the reform efforts pursued thus far, it is broader than just the Intelligence Community. The problem is our deficits in information collection, as well as reporting and analysis. By “information,” I mean not just intelligence gathered clandestinely, but also information obtained through diplomatic reporting and all the overt channels through which our government learns about the world. Inside and outside the Intelligence Community, our government has failed to coordinate information collection across different departments and agencies.

Our foreign information and intelligence will only be as good as the people we employ to gather it – and their ability to operate in the places to which we send them. Yet our intelligence deficit in human resources and collectors abroad is huge. The Office of the DNI estimates that between 1989 and 2001 – during the administrations of both political parties — there was a 40% loss in intelligence human resources. Making up for that loss will take time – after all, it takes five to seven years to develop an experienced employee. And we are short of experienced employees. Just consider what the DNI has acknowledged, that two-thirds of our intelligence-related human resources with responsibilities for sub-Saharan Africa – an area with ongoing al Qaeda activities — have less than five years of knowledge and experience.

The answer to these deficits in numbers and experience cannot be what the DNI has called its authority to “lift and shift” people to address the latest crisis. We need to develop the expertise that only years of study and experience can produce, and we need to pre-position expert collectors around the world – before crises arise.

The 2006 Intelligence Community Annual Report said that the intelligence agencies are “losing the ‘war for talent,’ finding it difficult to recruit, motivate, and retain the best candidates for its positions.” More specifically, the report noted: “[r]ecruiting and retaining high-level skills in critical languages and scientific and technical fields remains difficult.” Simply put, our national security depends on overcoming this particular challenge.

Human resources is part of a larger set of problems in how we collect and analyze information. As I will explain, these problems are entrenched and defy the ability of current institutions to correct them. For that reason, I recently introduced legislation with Senator Chuck Hagel to establish a Foreign Intelligence and Information Commission. Our bill will establish an independent commission to address long-standing, systematic problems in the collection, reporting, and analysis of foreign intelligence as well as diplomatic reporting and open source information.

First, as the Director of National Intelligence has testified, we continue to direct “disproportionate” resources toward current crises, rather than toward long-term strategic issues and emerging threats. Second, we don’t have the geographic distribution of resources we need to anticipate threats around the world. The lack of “global reach” has also been acknowledged by the Intelligence Community leadership. And third, we lack a comprehensive approach to information collection conducted by the U.S. government as a whole, including not only the Intelligence Community, but also State Department and other government officers who are based in our embassies.

This final point – that the problem, and the solution, are broader than the Intelligence Community — has also been acknowledged. Appearing before the Senate Select Committee on Intelligence, Michael Leiter, Director of the United States National Counterterrorism Center, specifically noted that “much of the information about the instability that can lead to safe havens or ideological radicalization comes not from covert collection but from open collection, best done by Foreign Service officers.” The problem is that it is not in the power of Mr. Leiter, or anyone in the Intelligence Community, to make sure that there are enough Foreign Service officers, in the right places, with the right resources.

To put it simply – the government does not have a process for asking the following questions: What do we need to know, not only today but in the future? Who is best suited to get that information and where do they need to be? Is our analysis up to the task? And how do we allocate resources, across agencies, so that these requirements are met with adequate funding and are focused on prevention, not just reaction? These big strategic questions are critical to our national security, yet they don’t get asked, much less answered. These issues extend well beyond the authorities of the DNI and the jurisdiction of any one congressional committee. That is why we need an independent commission to finally address them comprehensively and to make recommendations for the executive branch and for Congress. I am pleased that the Senate Intelligence Committee has endorsed this approach by including the Feingold-Hagel bill in legislation the Committee approved authorizing intelligence activities for the upcoming fiscal year.

Talking about “information collection” can sound a little abstract, but the implications are very real. Take, for example, our ability to address terrorist safe havens. As recently as the end of January, the State Department’s counterterrorism chief, Lt. Gen. Dell L. Dailey, publicly expressed concerns about what our intelligence services know – and don’t know — about the threat in the Afghan-Pakistani tribal areas. He said: “We don’t have enough information about what’s going on there. Not on al Qaeda. Not on foreign fighters. Not on the Taliban.” The same could be said about other safe havens identified by the State Department, including Somalia, the Sahel, and areas of Southeast Asia.

Around the world, potential instability looms, and political, economic and social conditions that can contribute to terrorist safe havens persist. The question for our government is how do we address these challenges, before the crises arise? Do we need more clandestine collectors in these parts of the world? Or do we need more political officers in far-flung places so we can do more robust diplomatic reporting? What does a U.S. embassy in one of these countries look like, from an interagency collection and reporting perspective? Are more consulates and out-of-embassy posts part of the solution? And how do we connect the requirements of our embassies overseas to Washington, where budget requests and spending allocations should reflect a broad strategy for collecting information across different agencies?

An independent commission will be able to ask, and help to answer, these questions. It will be able to look at the Intelligence Community, the State Department, and other departments and agencies to ensure that strategic and budgetary planning is part of a larger, interagency process. The commission will consider the role of the National Security Council and the OMB in this process. And it will look at the problem from top to bottom, interviewing NSC officials in Washington and visiting country missions overseas. This would not be a confrontational or accusatory investigation. It’s an inquiry intended to produce concrete recommendations to fix long-standing problems. Those recommendations will be of enormous benefit to whoever the next president is. And it will help Congress as it conducts oversight and considers the role of the Intelligence Community, the DNI, the State Department, and other agencies in the context of a broader strategy.

Other Gaps

There are other significant gaps in our security post-9/11, from this administration’s inconsistent “freedom agenda,” to our convoluted foreign assistance strategies, to our domestic infrastructure needs, but I think I may need a separate invitation for another day to speak about these.

Ultimately, the gaps that left us exposed here at home to the catastrophic attack we experienced on 9-11 remain with us. They present us with very real risks that are being left unaddressed, in part, because of our military presence in Iraq. The longer we remain in Iraq, the longer we will be unable to devote the human and financial resources these challenges urgently need.

I appreciate the roles that this institution and this audience play in helping to bring these issues into focus. I am hopeful that our voices, in all their diversity, will help inform decisions in a new administration that are in our best and collective interests. Nothing less than America’s security and future is at stake.

Thank you.

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