On Terror, Obama Draws Lines, Bright and Fuzzy

The White House is denying reports, picked up by prominent blogs, that secret U.S. Defense Department assets were used to help pinpoint the location of terrorism suspect Faisal Shahbaz.

Benjamin C. Rhodes, the deputy national security adviser for strategic communications, said last night that "the actions described simply did not take place." He had been provided, by me,  with a detailed scenario about how, having lost Shahbaz's trail, the National Security Staff turned to the Department of Defense's secret counterterrorism units for help in tracking him down.

Using Pentagon resources and equipment to assist law enforcement on terrorism investigations would not be unprecedented. RC-12Q aircraft -- sophisticated military signals intelligence jets -- were tasked to help the F.B.I. intercept cell phone communications of the Beltway sniper suspects in 2002. Just who operated those airplanes has never been identified, because their sensor platforms require special expertise. RC-12s were also in the air over Salt Lake City during the Olympics.

Although long-standing U.S. policy forbids the military from operating on U.S. soil and from conducting law enforcement activities, there are numerous exceptions. During the two most recent presidential inaugurations, units from the Joint Special Operations Command were stationed on the ground in Washington, placed on standby to mitigate a nuclear, biological or chemical attack. They were not needed.

The Obama White House has drawn a bright line between domestic and international intelligence operations, even as the secret authorities under which these one-off missions are tasked, codenamed Power Geyser, remains operational. (The name has probably been changed since it was first revealed in 2006.)

In this case, however, the White House apparently did not decide that such extraordinary assistance was needed.

After the National Security Agency ramped down its domestic surveillance activites in 2006 and Congress codified into law the supervisory functions of the Foreign Intelligence Surveillance Act, intelligence collected by the NSA on potential terrorism suspects inside the U.S. dropped off significantly. Its quality has always been in question. But Obama, when briefed on the scope of the NSA's current collection practices during the transition, signaled that he would be comfortable with more aggressive procedures, provided that the FISA court approved and congressional committees were briefed.

According to The Washington Post, the FISA court recently ordered the Justice Department and the NSA to immediately stop using a sensitive collection technique -- something unthinkable in the period before the law was changed.

Still, false rumors about the scope of NSA's activities abound: there are no large "driftnet" surveillance sweeps of domestic phone calls or data. Minimization procedures have been tightened to the point where the NSA often complains that important communications could have been missed. The agency no longer engages in warrantless surveillance of individuals. And in instances where the FISA court has approved warrants allowing for limited geographical-based monitoring --- say, if there is some doubt about the precise location of a potential terrorism suspect who is not a U.S. citizen inside the U.S. -- a special unit of auditors inside the agency regularly backstops the work of analysts, and reports violations to the court, which are then reported to Congress. There are currently a half dozen compartmented surveillance programs that involve some domestic component.

Overseas, the rules are looser. The Los Angeles Times 
reported today that the C.I.A. targets militants whose names it does not know, based on a secret presidential order reaffirmed by President Obama. The CIA's drone program has been so ubiquitous, even though its existence remains classified Top Secret, that the president felt comfortable enough to joke about how he might deploy the program to prevent a Jonas Brother from getting too close to his daughters. The fact of the open secret -- and the fact that successful strikes on militants are almost always leaked to the press -- a theoretical contravention of laws against disclosing classified information -- suggests that the administration wants domestic audiences to know that it takes the threat of terrorism extremely seriously, that it is capable of using the Dark Arts to kill bad people, and that it is not to be messed with.

It's easy for the CIA and counterterrorism officials to discuss militant strikes on background, and it's remarkable how little attention the questions about the drone strikes' inherent legality have received. Just ten years ago, the U.S. would openly protest when another country targeted a known terrorist living outside the first country. Today, the U.S. brags about its capacity to kill terrorists at any time around the world with near impunity. And then there are the operations we don't know about it -- the activities of the special operations command's special missions units. They remain black holes, rarely briefed to Congress and subject to very little internal oversight.

Presidents tend to want to isolate themselves from covert action. Not Obama. As Anne Kornblut reports, Obama participates in a weekly briefing on ongoing and planned covert activities, putting him in the loop and making him directly responsible for the actions of his associates. This is the meeting that Director of National Intelligence Dennis Blair argued that one of his deputies had to be present for, believing that the CIA's notifications to the DNI about its operations were too tardy, perhaps by design. Blair is wary of the drone strike program but is said to recognize that it's been effective in the short term.

When it comes to the perception of domestic counterterrorism activities, the administration goes out of its way to prioritize the role of law enforcement, always backgrounding -- but not de-looping -- intelligence and military assets. The Joint Terrorism Task Forces often include liaisons to intelligence agencies and the military's terrorism task forces.
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Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.

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