Intelligence Oversight Holds Up Clapper's Nomination

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Last night, I reported that the White House would consider a recess appointment of its national intelligence director nominee, James Clapper, if the Senate couldn't get him confirmed before the next recess. Here, I want to explain the situation as I understand it.


There's a bit of Stendhalian triangulation going on. The object of Congress's desire is information. Information from the intelligence community and the White House in the form of rapid notification of significant developments, projects, and operations. Congress wants to broaden the number of people who receive access to certain briefings on the holiest of holies. That's because House Democrats, in particular, want to build into the political system a structure that ensures that the intelligence community cannot adjust its secrecy policies to fit the political leanings of the president to whom they happen be tasked with providing information. 

Speaker of the House Nancy Pelosi (D-CA) remains convinced that the CIA outright lied to her on several occasions during the Bush Administration, and while her relationship with the CIA is much stronger today, forcing the executive branch's hand on notification is one of her top personal priorities. This may seem parochial, but she understands that although Congress hasn't performed its oversight function well when it has been given information, it cannot do anything if it has none. This is a long-standing battle, one that reaches back into the days when Jack Anderson's exposes of Richard Nixon's secret policies served as the channel for notification. During the Iran Contra affair, senators and members of Congress believed they were lied to directly by the director of the CIA. (The CIA's response was, and still is, that Congress didn't ask the right questions about the extent of the CIA's direct involvement in mining the Nicaraguan sea channels.) 

So here is what's happening now. The intelligence committee has not had an authorization bill for several years. (The armed services committee actually passes the bill.) That means, basically, that Congress has not had the chance to change rules or tighten regulations or whatever else it wants to do. Sen. Dianne Feinstein (D-CA), the chair of the Senate intelligence committee, is intent on having President Obama sign a bill into law before she accepts his nominee for the DNI position. Last week, the Senate and the White House came to an agreement on laPelosinguage that, to my eyes, doesn't do much to strengthen Congress's oversight capacities. But it was an agreement. Pelosi wants more oversight. Under her aegis, Rep. Anna Eshoo (D-CA) sponsored a provision to the defense authorization bill that would give Congress's own investigative arm, the General Accountability Office, more power to demand cooperation from the DNI. It passed, barely. (The DNI could still redact quite a bit of information from documents before sending them to the GAO, and the GAO could not make public any investigation without the DNI's permission.) 

The White House does not want to cede any authority in deciding who gets to decide what information is protected, how it is protected, and who gets to see it. So the White House was strongly opposed to the idea of enhanced GAO oversight. Publicly, it threatened a veto. Privately, it grudgingly agreed to the measure, asking for (and subsequently receiving) some tinkered language. (The White House was gonna veto the defense appropriations bill because of an oversight issue? Not bloody likely.)

Pelosi has several allies on the intel committee who want her to keep up the fight for expanded notification. There are currently certain projects and programs that the White House, the intelligence agency directors, and the secretary of defense disclose only to committee chairs, ranking members of the intelligence and armed services committees, the speaker of the House, and the minority leader. But Pelosi wants to expand notification of many of these more sensitive subjects to the entire intelligence committees. The White House says it will comply but doesn't want to be forced to do so. 

Back to Clapper.  Here's the sequence of events: Pelosi must move the bill to the floor. It must pass. It must be reconciled with the Senate (or be on its way to reconciliation). Then Feinstein will schedule her hearings. Then Clapper will probably be confirmed. 

Note: if Clapper gets a recess appointment, he would first need to resign from his current position as undersecretary of defense for intelligence. When the White House was courting Clapper, he was asked to resign before his nomination and refused. But now, it appears as if the law will force him to resign, provided he still wants the job. (He does.)

And so unless something rapidly changes, President Obama will probably exercise his recess appointment authority in a few weeks and give Clapper the keys to Liberty Crossing.

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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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