Lawfare Daily: What's Happening at ODNI?

[Intro]

Michael Feinberg: You do not want the DNI, who has access to all of the nation's secrets, to be put in the position where she is testifying in open court before a criminal defense attorney whose questions she cannot predict.

Natalie Orpett: It's The Lawfare Podcast. I'm Natalie Orpett, executive editor of Lawfare, with my colleagues, senior editor Mike Feinberg and public service fellow Julia Curlee.

Julia Curlee: The apparatus for selectively declassifying information in order to hurt the president's political enemies and help his allies' election chances in, in the upcoming midterms has already been created.

Natalie Orpett: Today, we're talking about the Office of the Director of National Intelligence, or ODNI, what it does, what inspired Congress to create it in the first place, and why recent developments are undermining its mission.

[Main Podcast]

Okay, so Mike and Julia, we're here to talk about what's been going on in the Office of the Director of National Intelligence, which is a mouthful, and which is why we call it ODNI instead, and you recently wrote a piece for us in Lawfare. But before we get into the substance of what you spoke about there and also just broadly what you're thinking about what's happening right now, I wanna start at a very, very zoomed out level, which is to ask each of you to help sort of demystify what we mean by intelligence.

This is something, obviously, spoiler alert to folks who are not familiar with ODNI, but ODNI, in fact, oversees quite a lot of intelligence-related things, including what is known as the intelligence community, which is also not self-explanatory despite the terms. And it seems to me there's sort of a definitional question of intelligence that's not quite as obvious as it may seem, and both of you had illustrious careers in this area, so I'm going to rely on your expertise. Mike, let me start with you. Just define intelligence for us.

Michael Feinberg: So entire tomes have been written trying to answer that question. And if you got 10 practitioners in a room, I have no doubt you would get at least 11 separate opinions. But I think the easiest definition upon which almost everybody would agree is that intelligence is the collection and analysis of information, both public, private, open source, government restricted, that is gathered, reviewed, and disseminated to policymakers in an attempt to make them more informed about their decisions, particularly in the world of international affairs.

Now, there are ancillary activities that relate to that. There are covert actions. There's espionage investigations. But I think at its root, intelligence is simply the general term we give to the obtaining of information about our adversaries and our attempts to figure out what is true and what is not and enable policymakers to make better decisions.

Natalie Orpett: Okay, Julia, quick, do the thing where you disagree with Mike and explain it completely otherwise, or you can agree and just tell us what else you think.

Julia Curlee: Oh, I agree. Sort of putting it algebraically, you know, it's raw information plus secrets plus context plus analysis of what the policymaker needs to hear based on what they're already working on or the policy agenda in front of them. So it's, it's information made relevant for a policymaker in the, you know, maximum possible way.

Michael Feinberg: One way to think about the process is There's a lot of different metaphors. The phrase cycle is used a lot within the community, but for people who've never worked in the field before, you know, a policymaker is gonna have a question, and the intelligence community is gonna answer that question almost in a funnel-like way.

They're going to gather as much information as they can from human sources, from intercepted signals, from geographic changes, from electronic measurements, and they're gonna get as much information as they humanly can to answer the policymaker's question. And then they're gonna compare the different sources of information against each other, separate the signal from the noise, and sort of distill what's most important into an analytic product that is going to answer the policymaker's question.

And then inevitably, the policymaker will have follow-up questions, and the process is gonna begin again. It's not really something that ever ends. It's just something that is constantly iterative.

Julia Curlee: Mike was getting at something, I think, there that's important, which is that if intelligence isn't just, like, a, a, a document, it is also a profession and, and a way of approaching analytic problems. And so we'll get that into that, I'm sure, when we talk about politicization, but there's a very strict code, and we train people what the pursuit of intelligence meaning and analysis is for, rather than simply the conveyance of the last report of information.

Natalie Orpett: Okay. That's really helpful, and I think the, this structure that you are both describing of the interaction that is between policymakers and the intelligence community, this, this profession that, as with other civil service in federal government, tends to go through multiple administrations. I know both of you served multiple administrations of different political parties, and that's pretty common as it is in other federal agencies. But there is, you can see immediately the tension point and the, the room that may exist for politicization just in the fact of that connection between policymakers and intelligence community professionals.

But one thing that occurs to me, sort of teeing up that possibility of politicization, but also to get at the question of the iterative cycles you're talking about It seems to me also that maybe the challenge there is that policymakers may ask a question that proves to be a completely irrelevant question, right? It's the wrong question. It's not even a question really. They're thinking from policymaker brain, and there's a real translation process to go through coming from the long process it takes to gather and analyze intelligence and turn it into a product that can be useful for policymakers.

We'll get into this when we're talking about what's happening with ODNI right now. I think it's useful context, but can I have each of you in turn maybe starting with you, Mike, just talk about that tension point?

Michael Feinberg: Yeah, I think in a normal functioning administration, which our country has had for the overwhelming majority of its history, and we should note the intelligence community is not that old. This is a post-World War II creation for the most part. You know, it's never really been that big a problem.

I,  when I say a policymaker has a question They are generally not asking about whether they should do course of action X. They are asking, "What are gonna be the immediate consequences if I embark onto X? What are gonna be the second and third order consequences I'm not thinking about?"

The intelligence community is generally, and, like, look, there are over a dozen agencies with hundreds of thousands of people staffing them at various times that play into this, but generally speaking, the intelligence community has traditionally been good about not getting over its skis and only providing analysis based on known facts and answering discrete questions.

There have been times that has not occurred, and there have been really deleterious results, and one of those times was actually half the reason, or at least a strong influence on why ODNI was created. But there's always been good equipoise between policymakers and the intelligence community about the sort of things the intelligence community can do.

And the community, we should be clear, has not been shy when a policymaker generally asks a question that is not something they can answer or is that out- that is outside their ambit. There, there has generally been a level of respect between the intelligence community and the political actors to whom it reports that has always, at least since the mid to late '70s, kept those tensions in check.

Natalie Orpett: Okay. Julia, what are your thoughts on that tension?

Julia Curlee: Yeah, so I served as a, a president's daily briefing, PDB, briefer in the first Trump administration, and one of your jobs is to take raw questions that come in from a policymaker and translate it into a question that the intelligence community can answer with integrity and ob- and objectively.

And it isn't always you know, the policymaker trying to manipulate intelligence, but you have to be able to put it in a, in a, a form for which the intelligence community has been set up to answer credibly back to the policymaker. It's often very clear what the preferred answer from the policymaker would be. That's not a, it's not normally a problem because of the way the intelligence community is set up and the strict values that we inculcate in our analysts to still speak truth to power despite obvious policy preferences, and that's really what is breaking down now.

Natalie Orpett: Okay, so let's, let's turn to that in a second. Let's just quickly do a, a primer on what ODNI is. So we've previewed that it came out of a very difficult period, a sort of rupture in the intelligence community, which of course happened around 9/11. But Mike, starting with you, can you just talk through the origin story of ODNI? What was this catastrophe that led to its creation?

Michael Feinberg: Well, it wasn't just a catastrophe, it was also a debacle. The catastrophe were the attacks of 9/11, and in the aftermath to those attacks, you had a real bipartisan effort, I hate the phrase blue ribbon panel, but it does apply here, to determine what were the missteps that the United States made which could have prevented or at least mitigated the attacks on the World Trade Center, the Pentagon, and also resulted in the death of an entire airliner full of citizens over a Pennsylvania field.

And the report is hundreds of pages long. We're not gonna distill it in 30 seconds, but one of the most important findings of the commission was that frankly, and I'm speaking colloquially here, the FBI and the CIA weren't talking to each other in any manner that could be described as efficient or consequential. And as a result, information gathered overseas about al-Qaeda was not making its way to people in charge of domestic security, and the stuff that the FBI was finding domestically, in terms of like odd behavior by people it was looking at, was not necessarily making its way to the CIA.

So you had each agency with half of a jigsaw puzzle's pieces, but they're not in the same room trying to put it together collaboratively. And one of the recommendations to mitigate this sort of behavior that the 9/11 Commission came up with was the creation of a director of national intelligence who was going to have oversight of the entire intelligence community, which contains the FBI, the CIA, but also the National Security Agency, National Geospatial Agency, all of DOD's various intelligence agencies. Like, it's, you're herding cats, and there had never before been a central node to which all those cats reported.

So, the 9/11 Commission determines we need to create a director of national intelligence. Now, while this bill is being debate- legislated, drafted, debated before it's finalized, you know, on the other side of the world, the United States has invaded Iraq, and the invasion of Iraq was not without controversy. And in order to justify it on the world stage and to the American public, the Bush administration really focused on the potential that Iraq had stockpiles of weapons of mass destruction.

We all know this turned out not to be the case, and President Bush, via executive order, establishes another commission, popularly known as the WMD Commission, which has a couple tasks, but it ultimately, in practice, ends up trying to figure out was the intelligence process manipulated or otherwise inappropriately politically influenced to give those who wanted to invade Iraq more of a justification?

And some of the answers to that question are now public. Some of them are still classified, but there were a number of missteps in the intelligence cycle, in intelligence analysis and delivery to policymakers that might not have provided a wholly objective view on whether Iraq was actually stockpiling WMDs.

So, the commission doesn't finish its work prior to the creation of ODNI, but its ongoing work is very much in the atmosphere while the bill that creates ODNI, the Intelligence Reform and Terrorism Prevention Act of 2004, is being finalized. So once ODNI is created, although the immediate impetus was the 9/11 attacks, its actual mission and the first projects it takes up are very much informed by what the WMD Commission is finding.

And for the first couple of years, it works fairly well. There was an initial attempt to get Robert Gates to serve as the first director of national intelligence, and he declined.

The second individual they approached was John Negroponte, a career foreign service officer who had also worked in capacities in the National Security Council. And he is not a figure without controversy. I, I want to be crystal clear about that. He oversaw or was involved in a lot of anti-communist operations in Central and South America in the '80s, about which there have been several, and credible, allegations of human rights abuses. But he's also an incredibly savvy bureaucratic knife fighter, for lack of a better term. And his inclinations, his instincts about institutional politics are incredibly astute. And he gets victories where he can, in terms of getting ODNI respected by the rest of the community, and there's other fights he chooses not to pick, and we'll get to one of those later. But he does a really good job of just steering the ship for its initial period in a manner that does not throw too many sharp elbows at the now subsidiary agencies.

And his successor very much does the same thing. The third director of National Intelligence, I would argue, and our piece argues, makes a number of strategic and tactical decisions that unfortunately burn a lot of that political capital. But that happens later.

Natalie Orpett:  Okay, yes. I wanna talk about that. Julia, I wanna come to you first to just explain a little bit what that role looks like in practice. So, as Mike was describing it, you know, there was a, a pretty clear purpose for which Congress created ODNI, and that was to learn from the lessons of the mistakes that had been made with respect to missing the incoming attack on 9/11, and also what happened in the lead up to the war in Iraq.

But what does it actually look like that, what role is ODNI playing? To what extent is that, is it consistent with the sort of broad goals that Congress had in putting it together as, as well as the sort of input that Mike was describing from the commissions?

Julia Curlee: Yeah, so one of the duties that only the DNI is performing is coordinating the entirety of the intelligence community. Before the DNI was created, before 9/11 and the Iraq WMD fiasco, the director of the Central Intelligence Agency had, as one of his duties, the coordination of the broader intelligence community. Quite rightly, Congress found that the CIA director had neglected that part of his duties in favor of focusing more on the day-to-day activities of the CIA. So appointing a dedicated figure whose primary job is to oversee the entirety of the intelligence community is one of the main things that distinguished the DNI from the previous arrangement.

Day to day, the DNI's primary responsibility is to oversee the budget, the prioritization of intelligence collection. The DNI also has a, a couple of units that report directly to them. The NCTC, the National Counterterrorism Center, and the National Counterintelligence Center as well, both report to the DNI, but a couple of the key aspects of their job is to perform as the president's senior intelligence advisor, and underneath that is the PDB, which also belongs to the ODNI, and the National Intelligence Council, which belongs directly. So you have the senior-most products, both the day-to-day intelligence feed to the president, and the more long-term national intelligence estimates, the deeper analytic products, also fall under the DNI

Natalie Orpett: Okay, so I, I promise we will get in a moment to more recent events. But while I have both of you and in the fa- in the sense that you are representing careers from different agencies, one piece of it, which you both mentioned, that I find really interesting is the extent to which what the commission had found is that there were major cultural differences and practice differences between agencies. And of course, that's normal. The same tension exists between other departments that have to coexist and work together on things. One can think perhaps of the State Department and the Department of Defense, who are often on the ground together and thinking very differently about what their goal is there, also DOJ, when doing extraterritorial actions.

But, you know, it, it's not an insubstantial thing, and I'll, I'll confess that I'm particularly attuned to it because in my capacity representing a Guantanamo detainee, the clashes between the CIA and the FBI in the course of the early war on terror were really significant and are actually still playing out in court right now.

So I wanna hear a little bit from both of you about the effectiveness of ODNI, of, of the DNI in particular as an individual, in sort of helping to play a translation role to... You know, I, I don't think, I don't mean to say that there are conflicts necessarily, but there are different cultures, different practices, different methods. So what did ODNI and DNI, him or herself, do to help facilitate more coordination among these many, I believe it's s- 17 different intelligence community members? Mike, I'll start with you.

Michael Feinberg: I am very much of the opinion that the DNI's influence on intra-agency relationships was fairly minimal. What the DNI and ODNI did very successfully for its first decade, decade and a half maybe, was standardize language and processes. You know, the example we cite in the piece is there is an intelligence community directive that functionally says words have meaning, and if we're gonna say something is likely or highly likely or unlikely, we have to be using the same language as each other. So we're gonna actually assign numerical percentages to all of those terms. It's that sort of stuff, which is more logistical and administrivia than anything else, that the DNI really excelled at.

I would gently push back against your characterization of the relationship between the FBI and CIA. There were certainly very vociferous disagreements about detainee interrogations and what was appropriate in that context. But I came into the intelligence community after 9/11 and there were individual one-off disagreements I would have with my counterparts at a relevant CIA station, or at CIA headquarters when I was at the Hoover Building, but in general, it was a good relationship.

It is culturally very different, and I, I mean that in the purest sense of culture. I mean, in terms of education, demeanor, you know, just CIA and FBI, they're different types of places. So there are cultural differences, but in terms of being, you know, two unique workhorses, they were almost invariably operating in concert and pulling in the same direction when I was there.

But I don't think that was due to the DNI. I think that was due to, if you'll pardon the language, everybody realizing after 9/11 we had to get our shit together or Americans could die. And that is a much more powerful motive to cooperate than any bureaucratic infrastructure you overlay on top of the preexisting relationship.

Julia Curlee: So I’ll give you an example of the role of the DNI. So just in the an- the analytic world, the overwhelming majority of PDBs that go to the president are authored by CIA, but the institution of the PDB belongs to the DNI to oversee. And this goes back to the, the prior arrangement before the creation of the DNI, where the CIA would either not share information or not coordinate its analytic products with the rest of the intelligence community.

And so what the DNI is doing through these products, like the PDB and like national intelligence estimates, is forcing the conversation. So at very least, minority or, or dissenting voices can be heard and will get to the, the, the customer, the policymaker. And this is, of course, one of the fundamental breakdowns that we're seeing, where the DNI is not playing this role of ensuring that inconvenient information, dissenting views are reaching the ultimate policymaker.

Natalie Orpett: Okay, so I think that's all really, really, really helpful context. Let's shift now to a little bit more of a modern take. So we've, we've gone through the early 2000s. DNI, as you said, Mike, the, the first two did pretty well, have generally a good reputation for the early days of getting this brand-new agency off the ground.

The story gets a little more complicated from there and you go through this in your piece, but I wonder if you can give a quick overview of the years leading up to where we are now and where we will focus on after this, which is the second Trump presidency. But what was happening? What were the trend lines before we get to where we are now?

Michael Feinberg: So during the Obama administration, the third director of national intelligence is named. It's Admiral Dennis Blair, and he is a longtime public servant, a patriot, a flag officer, but he is not as politically savvy as his predecessors. And there are a number of debates where ODNI is fighting with other agencies, particularly CIA, sort of, I don't want to say for supremacy, but over discrete patches of turf.

And one of the debates that gets out to the media is who should have the final say over the United States' principal intelligence representative in any given foreign country? This is a role that had always been performed by CIA chiefs of station, who are obviously chosen by the director of central intelligence. But Blair decides he's gonna go to the mat in order to get that approval to come under ODNI, not CIA. And I'm simplifying a lot of it for the sake of time, but he loses that battle.

And to be clear, like, this is something that his predecessors also wanted. They just realized it was unlikely to ever happen, and if they tried to get this in any sort of public way, a political loss for ODNI that early in its existence could have real reputational harm, not with the public, but with respect to the intelligence agencies that the DNI is supposed to oversee. So Negroponte doesn't pick this fight. McConnell doesn't pick this fight. Dennis Blair does, and the director of Central Intelligence at the time is Leon Panetta.

Now, I don't have inside information on this, obviously, but Leon Panetta is a career senior Democratic political operative. There is skepticism about him when he gets named to the director of Central Intelligence among the workforce, but he quickly assuages that by just being really good at the job. And by virtue of his long history in the Democratic Party, I mean, he was, you know, he was in the Clinton administration. He worked in Congress for ages. He's close with both Vice President Biden and President Obama. And there's just no way, given the dynamics and the political capital of each agency, that Leon Panetta is gonna lose this fight.

And Dennis Blair does lose and ultimately leaves the administration having realized he just doesn't have the juice with the White House that ODNI needs. And this gets reported on. I think the most reporting was in The Atlantic, although the major papers also played a role, and DNI does lose a lot of prestige. It's very clear that when it comes to gathering foreign intelligence abroad, CIA still runs the game. And ODNI never really recovers from that perception.

They're still involved in coordination. They're still involved in analysis. They're still involved in promulgation and delivery of information to policymakers. But they're never going to be an operational equity. They're, they're never going to actually have a say in what's happening on the ground overseas when, to be frank, American spies are trying to steal secrets.

And operations are what capture the attention of both the public and senior policymakers. And, and to be clear, that's not a good thing. Like, when policymakers get obsessed with operational possibilities, you get things like the Bay of Pigs and the invasion of Iraq. And just ODNI doesn't recover.

You know, Trump comes in and you have more, you know, as you do in many cabinet departments during his first term, you have more turnover than was ever intended for ODNI in the DNI role. A number of individuals served either as permanent DNIs or acting under him. He elevates it to a cabinet-level position, which it was not initially, so you'd think that would get some prestige. But, you know, as has been widely reported, Trump, he likes to cherry-pick the information that is delivered to him.

And as a result, it is very hard for anybody to stay in the position for a particularly long time because they're bound, if they're doing their job, to upset him and his aides. And unfortunately, the interregnum that we have during the Biden administration turns out to be just that. And Trump comes back to office and he ends up naming Tulsi Gabbard, somebody who's, despite her military service, whose interactions, reputation, credibility, and own credulousness with respect to the intelligence community is what I will politely term as idiosyncratic.

Natalie Orpett: Okay, Julia, let's talk about the beginning of the first Trump administration. You were there through the first Trump administration, the second the Biden administration, the second Trump administration. What happened that was a rupture to the extent it was? How much did you see this interregnum that Mike was just talking about?

Julia Curlee: Yeah. I would add a couple of thoughts just on top of him of why the institution is so historically weak. Among the reasons are that most of its im- officers have been seconded from other agencies. They're on, they're on detail, and ultimately will be returning to their home agencies who will be in control of their future promotions. And then second, the, the direct units that do report to the DNI are somewhat duplicative of units at CIA and FBI who are in the lead on operational matters. And so the DNI at best has been the middleman, sometimes a necessary middleman, but ultimately not the ultimate source of the information.

So I think that it's fair to ask how much harm this weak institution can do, and especially after it was cut down to about 1,300 staff by Tulsi Gabbard at the beginning of this administration, and has been criticized for a couple decades now for lacking sufficient authorities over the department of agencies that it is supposed to be managing. And so I think that what is happening now is that you had a historically weak institution and with a lot of authorities, and the idle hands now willing to use them.

So at the beginning of this administration following Gabbard's ascension to the, to the role, we saw the DNI immediately being used in a political fashion to fashion intelligence to f- to fit the president's political desires, whether that is to support his policies or to punish his enemies.

At the beginning of the administration, I was serving in the White House as the senior director for intelligence programs, and it fell to me immediately to begin tasking out the request from this new administration. First among them was a request from the Homeland Security Advisor for an assessment of Tren de Aragua and whether it was being directed by the Venezuelan regime to invade the United States. This was the legal predicate for the Alien Enemies Act, and it was obvious which direction that the administration hoped the assessment would come down on. I tasked it out, and of course, the answer that came back from the NIC was quite the opposite. And in a public spat between the DNI and the head of the NIC, the head of the NIC was fired for providing the answer that the policymaker did not want to hear.

Natalie Orpett: And just to, to clarify, the, the NIC is the National Intelligence Council, and which actually does report to the DNI. So there was, this public spat that you're talking about is between a boss and their subordinate, right?

Julia Curlee: Correct. This was the DNI declaring that her direct subordinate was a part of a deep state conspiracy of sabotage trying to bring down the president. When they directed the head of the NIC to rethink the assessment, and when the, the officer, who was one of the most respected officers in the intelligence community, refused, they had him walked out and publicly fired, sending a message to all of the analysts, both at DNI and across the intelligence community, that that would be how the administration would handle dissenting views. And I think it's important to, to focus on this because it really did set this example, set the climate for which the subsequent acts by the DNI should be seen.

Natalie Orpett: Okay. Yeah. Let's talk about some of the next events that really made the news, and, and I'll just note, obviously, I have no internal knowledge whatsoever, having never been part of these communities. But it, it did strike me as very notable that there was as much information getting out publicly.

A lot, we, we know historically, at least, there have been plenty of instances where there, there's been, not to minimize it, but drama within ODNI and tension between the agencies individually and DNI on the other side. And we've touched on some of that somewhat, but a lot of that wasn't in the public eye the way that things were earlier in this administration and as they continue to be.

So I wanna talk about one other instance that we covered very closely at Lawfare, which was Gabbard's presence at the Fulton County election hub where the FBI seized ballots in connection with an investigation that they said was, had been ongoing. And we remarked at the time at Lawfare how incredibly unusual and, I believe, unprecedented it was for a director of national intelligence to be involved with this law enforcement operation. I'll come to you on that one, Mike. I know we had conversations at the time, and I believe you wrote about this.

Michael Feinberg: In addition to being unusual and unprecedented, it was completely inappropriate, and I'll explain why. So, so much of how the intelligence community is now structured is a direct result of a series of hearings conducted by the Church Committee in the Senate and the Pike and Rockefeller Commissions in the House that attempted to stop the use of intelligence agencies and law enforcement agencies from being essentially political weapons.

So a lot of restrictions were placed on what the CIA could do domestically, what the FBI could do politically. There were attempts to put guardrails on the road to make sure that the people who have the power to surveil, manipulate, and confine American citizens did not do so except for reasons of national security and criminal enforcement.

And Gabbard being at a criminal investigation's attempt to seize evidence takes a sledgehammer to those norms, and her justification doesn't hold up. What she says in public is that the ODNI is responsible for what's called the DomDNIs, the Domestic Directors of National Intelligence, which are a group of individuals throughout the country that serve as mini-DNIs for their region. And she points out the DomDNIs are the special agents in charge, or assistant directors in charge, of the primary FBI field offices in those regions, so that's entirely appropriate for me to be at an FBI crime scene or evidence processing scene because the special agents in charge report to me.

But she leaves out a really important caveat, which is that if you look at the most technical of the org charts, hell, if you look at Wikipedia, The FBI itself as a whole is not a component of the intelligence community. It's the FBI's National Security Branch. In other words, the counterintelligence, counterterrorism, and a couple other divisions report to the intelligence community. The criminal investigators, the public corruption investigators, the white collar investigators, the violent crime investigators, they're not part of the National Security Branch.

And a lot of this has changed under Trump, but basically, she is claiming an authority that has nothing to do whatsoever with what was going on in Fulton County. Now, at a certain point, they make the argument that maybe there was foreign influence in the election. Okay, cool. If that's the case, she has a role, but that role doesn't, shouldn't come into focus until after they've analyzed the evidence they've gathered and that, that, and determined that there actually is a foreign player in this state of affairs.

Having the DNI at a crime scene or a scene for evidence processing is just inappropriate, and it's also really, to be blunt, stupid. The DNI is now at a scene where evidence is being gathered for a criminal investigation. That turns her into a potential fact witness for any attempts to suppress that evidence or any ultimate trial. And you do not want the DNI, who has access to all of the nation's secrets, to be put in the position where she is testifying in open court before a criminal defense attorney whose questions she cannot predict. So this was just a farce to begin with, and her later explanations did absolutely nothing to clear up the confusion.

Natalie Orpett: Okay, that's, that's good context as well because it was, it seemed very unusual, and it is helpful to know exactly how and why. So, and, and I suppose I should say, since we have been talking with the throughline of concerns about politicization that, probably obvious to most of our listeners, but each of those very unusual phenomena that we just mentioned do seem to have quite a political valence to them.

Let's talk, though, in the last little bit of time that we have about the last part of your piece, which is that Tulsi Gabbard has since resigned her position as DNI. We do not yet have a new nominated, or we have a nominated DNI. We do not have a confirmed DNI, but we do have an acting DNI, and that is Bill Pulte, who has no intelligence experience to speak of, which seems to be a blatant violation of the statute that set up ODNI.

But setting that aside, he also has a track record of having referred cases to DOJ for prosecution of people perceived to be Trump's political enemies, and that included several instances of alleged mortgage fraud. We've covered these cases a lot in Lawfare, so I won't reiterate them.

But let's talk about, given the limited but important, obviously, role that ODNI plays, but we've talked about sort of the restricted role to some extent. If we have this person now, Bill Pulte, who is in charge of ODNI, who doesn't have that fluency of intelligence community background, understanding, you know, even knowledge of the vocabulary, let alone the sources, methods, et cetera, how worried do we need to be that someone with this sort of background and track record is here and only in an acting capacity? Julia, I'll start with you.

Julia Curlee: We should be very worried. And just to add to Mike's points about the Fulton County investigation, the quiet part was right out loud. Tulsi Gabbard said that she had been directed to participate in the investigation by the president, who has been quite open about what the purpose of that investigation is, to manufacture evidence about, or to discover evidence about voting fraud.

The president has been quite clear about the purpose for both the investigation in Georgia, but also his reasoning for promoting Pulte into the position, which is to declassify information which substantiates his own allegations about voter fraud and how the elections in 2016 and 2020 were either not manipulated in his favor or manipulated against him. And his DNIs have been given that marching order in order to generate that kind of information to support that verdict.

And so, I think that if we look at the underlying powers of the DNI that can be weaponized in favor of the president's political enemies, we should be worried about several things.

First, and this case in Georgia puts a spotlight on it, the use of intelligence powers domestically. So through the National Intelligence Priorities Framework, the DNI gets to set what the community is collecting on, and so she could, could turn it into an apparatus aligning and prioritizing collection toward White House priorities, which in a recent new counterterrorism strategy issued by the White House, pledges the rapid identification of domestic groups with possible foreign connections, identifying institutions, so-called, like Antifa and other radical groups and trying to identify their membership in the United States.

The DNI has the authorities to direct intelligence, which could claim that individual groups are foreign-directed, which unlocks a whole different set of t- of tools for use against these groups, including domestically. We saw the importation of the kind of counterterrorism tools that have been used in the war on terror into the Western Hemisphere with the designation of a criminal group, Tren de Aragua, as a foreign terrorist organization. And you could see the DNI laying the predicate for doing that against other groups, including domestic groups in the United States.

Last, I would point to the DNI's a- ability to set the rules for buying commercially available information, information collected by private companies on the location, browsing history, social media records of American citizens. So a loyalist could direct the intelligence community to use its resources to target people purchasing information that would otherwise need a warrant to obtain, creating a potential end run around the FISA process and 702, which is of course also being held up in a manner by the administration.

Natalie Orpett: Okay, Mike, I'm giving you the last word. I'm sure you're going to use it to tell us that you are not nearly as worried as Julia and everything will be just fine.

Michael Feinberg: No, this is an audio-only podcast, but I will say if the listeners could see me, they would note that my hair is actually on fire. I'm quite worried, and I'm worried for a reason that I very much fear is not getting enough attention in public. The DNI has access to pretty much all of the intelligence holdings of the United States, save for some very specific compartments that are BIGOT listed. But even then, like, the DNI getting access is literally just a matter of asking.

The DNI also has the authority to declassify information in part or in whole. And when you have a really in-depth analytic product or a finding on something like foreign influence, even if the finding is that there was no foreign influence, you can still declassify it in an abridged partial manner in a way to give the impression that something is amiss.

And Tulsi Gabbard was quite good at doing this. She would declassify partial files, partial reports in a manner that made it look like elections were fraudulent or, you know, I think there's still a live debate about the COVID lab leak among certain parties, but I guarantee you what she released about the origins of COVID were not the entire file.

And in doing that, you can really mislead the public. It's essentially the United States government doing its own disinformation campaign for the benefit of the administration. And I think, I hope the public and the media will be extremely skeptical of any declassified reporting that seems to impact our elections.

Natalie Orpett: Okay, Julia you get one more last thought to retract everything and say that everything will be fine.

Julia Curlee: No, just to amplify Mike's point on this, the apparatus for selectively declassifying information in order to hurt the president's political enemies and help his allies' election chances in, in the upcoming midterms has already been created.

We have had information coming out that there is a task force being set up under the aegis of the, the DNI to selectively release information to the public about ongoing foreign interference in U.S. elections, and the individuals that have been named as part of this task force are all individuals who have been engaged in these kind of selective and politicized releasing of information in the past back to 2017 and 2016 through different congressionally run investigations under Devin Nunes.

We now have an election operative who is gonna serve as Bill Pulte's chief of staff being installed within the ODNI, and Trump has already in public said that Pulte has the authority to declassify, quote, "whatever he wants," and he thinks that Bill will do precisely that.

And so, we already have at our disposal all the information. We, we would be very concerned that this would be happening, and we also have information that the FBI has reassigned up to 260 officers and authorized overtime for the purposes of surging support to local elections-related investigations in Atlanta.

So this is an ongoing, already occurring effort to lay the groundworks for accusing certain parties in the upcoming elections to, to have received some sort of shadowy foreign support and trying to delegitimize individual elections if the president deems it to be politically inconvenient

Natalie Orpett: Okay. Unfortunately, we're gonna have to leave it there on that pessimistic note, which I unfortunately share with you, for the record. But I want to thank you both for helping to explain all of this and to really give some context to why all of this is so troubling and dangerous. So thank you, Mike and Julia, for joining.

[Outro]

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