We anticipate the Obama Administration, seeking to open doors to indirect talks with Hamas, will face residual resistance from Bush Administration allies overseas.

We anticipate President-elect Obama will issue an executive order imposing legal consequences on US personnel, undercover agents, and others indirectly connected with the US to do the following:

Send a clear signal that confrontation with Hamas using Bush Administration policies will not be acceptable, and subject to disciplinary action and other sanctions.

We discuss the basis for this assessment after the jump:


We previously provided TPMM with assessments related to expected US negotiations with Hamas. This analysis closely matches subsequent reporting ten (10) days later in the Guardian.


Here is the news, January 9th, 2009:

Guardian: Obama camp 'prepared to talk to Hamas'

Here's what was available on TPMM, December 31st, 2008:

TPMM: Israel, US Planning On More Talks With Hamas

We judge the incoming Obama Administration worked through Bush and the Isrealis to undermine Hamas' negotation position:

TPMM, Dec 2008 [Bold added]:

"Preparing For Future Discussions With Hamas: The question is less what will happen in the current combat situation in Gaza, but whether Israel and Hamas have plans going forward that will achieve agreeable terms. Israel wants to change the basis for the negotiations, remove many of the Hamas' current options, and change how Hamas attempts to use its relative advantages during the next phase of negotiations. Israel is signaling not that it genuinely wants to -- nor believes -- it can destroy Hamas; but that Israel is required to use military force to remove the current advantages Hamas has in negotiations."

Obama knows Hamas will be around.

Note the key word, plural: "Discussions"

Guardian [emphasis added]: "The Guardian has spoken to three ­people with knowledge of the discussions in the Obama camp."

This suggests that the planning is along the lines of a multi-lateral approach; with multiple players; emerging agendas for the meeting.

Compare the Guardian report on counter-productive approaches, and the December comments:

Guardian: there is growing recognition in Washington that the policy of ostracising Hamas is counter-productive

TPMM, December 2008, discussing the risks of action against backfiring:

Israel's Limited Military Goals Against Hamas: Preparing For Future Negotiations With Hamas

Israel's military campaign is not designed to be a decisive military victory over Hamas, but create a more favorable negotiation platform. Israel plans to negotiate again with Hamas, and recognizes that Hamas is not going to go away. The aim of the military action is to bolster public support for the plan to undermine Hamas' perceived negotiation advantages. The military operation is expected to backfire in the long-run and Hamas is expected to gain support within Israel, not just the Palestinian community.

And [emphasis added]:

Israel Use of Force Underestimates Stronger Support for Hamas In Long-Run:

Throwing more money at Israel for combat operations, has no affect on whether Hamas  does or does not have a perceived advantage at the negotiating table. The problem is that Israel has too quickly moved to exploit a short-term military recover after her losses against Hamas, but has not solidified a gain to destroy the Hamas advantage at the negotiating table. It is  expected that Israel's use of force will likely exceed what Israel originally planned, but require such military force to backfire, and strengthen supports [stet] for Hamas in the long-run.

This is an error, and appears to be a notion from the Neo-Cons:

Guardian: "But the president-elect would be wary of being seen to give legitimacy to Hamas as a consequence of the war in Gaza."

It appears the Neo-Cons are hoping to create some doubts about whether the US should or shouldn't interact director or indirection with Hamas. Whether the US does or doesn't work with Hamas has no relevance on Hamas: Hamas is here to stay.

Regardless Israeli combat  results against Hamas in Gaza, nothing can take away the Hamas'  election victory. Hamas is seen as a legitimately  elected government which the US and others have not been able to accept. The error was seen as resting with non-Hamas forces.


Concerns About Bush Administration Risidual Backchannels With Israel

We believe this is a weak assumption, possibly giving an invalid green light to Israil to expand (illegal) ground and air operations in Gaza:

Guardian: "Bruce Hoffman, a ­counterterrorism expert at George­town University's school of foreign ­service, said it was unlikely that Obama would move to initiate contacts with Hamas unless the radical faction in Damascus was crippled by the conflict in Gaza."

Hoffman's statement misses the opposite risk, raised before: That without a reasonable US position relative to Hamas, Hamas would have greater public support, and feel unconstrained militarily and legally, especially in the wake of Isreali war crimes:

TPMM, December 2008 [emphasis added]:

Timing To Dilute Hamas' Stronger Negotiating Position: Israel viewed the situation less stable because without Hamas' fear, the Hamas had no incentive to agree to be bound to any timelines, numbers, or specifics.

Hamas appears to have a superior legal position to lawfully engage in similar, retaliatory strikes against Israeli interests because of Israel's attacks on protected civilian, non-combatant targets.

We view the likelihood that the President will expand dialog with Hamas will increase long before Hamas is crippled to the degree Hoffman anticipates. Rather, the Israeli miltary action, especially the catalyst of the war crimes, would put pressure on Obama to more quickly call for a different approach well before Hoffman's hypothesized tipping point.


Conclusion

We judge there were be residual efforts and personnel, still loyal to Bush Administration policies, that could seek to interfere with the Obama  Administration policy relative to  Hamas.

Likely Recommendation

We judge the Obama transition team has likely discussed the following:

Anticipated Executive Order, DOJ OLC Review

Obama Administration issue an executive order reminding residual CIA and under cover DoD foreign placed assets linked indirectly with Israel and Hamas to remind them:

1. Bush Administration policies of confronting Hamas outside President Obama approval, if continued, could subject US personnel, agents, and allies to prosecution;

2. All agencies, personnel, and departments which  seek any  resources,  funding, or foreign assistance to continue confrontations with Hamas could be subject to adverse Presidential action.

There is the possibility there could be a ghost-agency within the Obama Administration that conducts an Iran-Contra like operation: One that illegally defies public statements, remains loyal to the Bush Administration policies, and seeks to use low profile operations to continue policies which contract to the Obama Administration.

One area for TPMM readers to review are the holdovers, and the information flow between Bush allies to thwart enforcement of this likely executive order:

Efforts To Thwart Obama Enforcement

A. Which hold-overs within the US Department of Justice are likely to impede the DOJ OLC legal analysis related to this likely Obama executive order.

B. Which foreign powers and personnel are former Bush intelligence allies likely relying on to get information about the expected adverse actions Obama would take with those who attempt to impede the Obama Administration from interacting with Hamas?

These issues will require close coordination between DoD, CIA, and State.

Applying the lessons of the current financial crisis (see grid, 15 of 65, item 1.2) should generate the following actions. Without these actions, there are reasonable TPMM doubts about the systems in place to enforce the emerging Obama administration policy re Hamas:

1. Detection

There is the risk that criminal sanctions may be required, but residual Bush Administration allies will thwart the prosecutorial and legislative changes.

A. Transition Implementation, Monitoring: There is the risk that the transition will not be complete, and residual players will not quickly relinquish authority over anti-Hamas efforts.

- What methods will Congress and the Department of Justice use to detect those likely opposing the Obama Administration's position on Hamas; how will the proposed plans glean the lessons of the poor Treasury response to the IG [see 15 of 65, para 1.1-1.2, and the OSC problems?

- What methods will the US government use to publicly show that it has completely transitioned; and there are no residual players implementing previous Administration policy which contracts the Obama Administration?

- What methods will be used to ensure transition plans accurately reflect public concerns; and the public inputs are taken seriously?

- What methods will be used to detect whether there are secret Bush Administration gag orders which prospectively attempt to hide internal challenges to the Obama Administration policies on Hamas?

B. Oversight Plan: The Risk Is Congress Will wait until the problem emerges before conducting oversight. A proactive approach is possible.

- Is Congress relying on independent sources of information to review whether there is adequate compliance with the new policy re Hamas?

- If there were violations, does Congress have a plan to mobilize CIA-DoD IGs for overseas assignment to detect and report questionable conduct within the intelligence community?

- How will whistle blowers be afforded protection?

- What will ensure the contractor misconduct reports re Hamas change in policy are taken seriously?

- How will legislation get scrubbed so that there are no earmarks for policies which undermine the Obama Administration policy re Hamas?

- Will it be an "unauthorized disclosure" for there to be disclosures about secret, still classified Bush Administration policies which undermine the Obama Administration policy changes re Hamas?

- Will Congress force the CIA IG to review leaks about ongoing CIA operations which would undermine the Obama administration policies re Hamas?

C. Circumventing GOP Obstruction: The risk is Obama will have to use a similar process to bypass the GOP as Bush used to bypass Congress.

Will the Obama Administration use an executive order to bypass possible "GOP threats  to refuse to cooperate with the proposed legislative reforms to modernize US policies re Hamas"?

How will these types of issues be factored into the oversight: Apparent GOP-linked efforts to thwart public discussion on issues?

D. Bush Administration Precedent: The risk is the Bush Administration abuses have been so horrendous, that the GOP would likely take a contradictory position on signing statements.

What positions does the GOP take on the Obama Administration executive order that contradicts their approach re Bush Administration executive orders re rendition, POW abuse, FISA violations, war crimes, and other illegal signing statements?

2. Covert Action Reviews

To circumvent the Obama Administration new stance re Hamas, there is a risk that new covert actions could be started under Bush, or existing covert actions could be adjusted outside the intent of Congress and the Executive.

A. Intelligence Community Oversight: Does the US Congress and Obama Administration have an independent system to review activities of personnel in the intelligence community that are secretly implementing policies which are more in line with the Bush Administration, not the new Obama Administration?

B. Tightening Leash on US Covert Actions: What methods is the CIA-NSA-DoD IGs using to review existing covert actions to ensure they are not repurposed to undermine Obama Administration policies re Hamas?

- How much money is being hidden inside DHS or DOD using vague mission need statements?

- What will reign in the outsourced contracts which could possibly be used to thwart Obama's planned change in policy re Hamas?

- Are the power point slides related to these contracts understandable to members of Congress [look at pages 5 and 6 of the linked ppt show]; if not, why aren't they requiring DoD to redo the presentations?

3. Overseas Entity Vetting

There is a risk that overseas entities, not pubilcly allied with the US, but indirectly funded by DoD could have residual support for Anti-Hamas policies started under the Bush Administration.

DoD has well documented business accountability problems. DoD is not positioned to adequately oversee forces and overseas entities which were previously mobilized to oppose Hamas; nor ensure the are adequately supervised to embrace the expected change in Administration policy re Hamas.

A. Scope of Dubious Support For New Policy re Hamas: Does Secretary of Defense Gates have a handle on which overseas allies or non-directly connected entities allied to the US could be used to facilitate an effort to undermine the Obama Administrations new policy relative to Hamas?

B. Deadline For Overseas Entity Compliance: What methods does the Congress  and DoD IG plan to use to ensure that overseas entities indirectly allied with DoD are not repurposed to undermine Obama Administration policies re Hamas?

4. Interactions With Israel re Hamas

There is a risk the Obama Administration is not satisfied that Israel is on board with the proposed negotiations with Hamas; and that Israel might undermine the Obama Administration policies re Hamas.

A. What increased military security assurances does Obama plan to provide to Israel in exchange for Israeli support for a new position re Hamas?

B. Is the US prepared to take adverse action against Israel if Israel actively undermines the Obama administration's new policy against Hamas?

C. Does Israel understand these consequences are real, not a bluff?