Why Ask the FBI about Classification on the Targeted Killing FOIA?

The FBI, as far as we know, never gets to press the buttons on JSOC and CIA’s drones. And as I noted last June, FBI information we know exists (some of it in unclassified form) was suspiciously absent from the materials identified in the response to ACLU’s request for information on the evidence supporting the targeting of Anwar al-Awlaki and Samir Khan.

Remember, in addition to general information about the legal authorization process, ACLU asked for:

Facts supporting a belief that al-Awlaki posed an imminent threat to the United States or United States interests;

[snip]

Facts supporting the assertion that al-Awlaki was operationally involved in al Qaeda, rather than being involved merely in propaganda activities;

[snip]

All documents and records pertaining to the factual basis for the killing of Samir Khan

DOJ probably has information pertaining to the assessment–for example–that Samir Khan could leave the US and travel to Yemen even though a long line of FBI terror investigation subjects have gotten arrested for doing the same. There’s also information submitted in the Mohamed Osman Mohamud prosecution pertaining to Khan which also probably would have received high level attention.

And we know that DOJ claims to have evidence that proves that Awlaki was operational, much of it pertaining to Umar Farouk Abdulmutallab’s attempted attack and subsequent interrogation (indeed, two of the few documents OIP says were responsive date to January and February 2010 and almost certainly pertain to the aftermath of Abdulmutallab’s attempted attack).

Yet in spite of FBI’s notable absence from the discussion of the targeted killing FOIA, Judge Colleen McMahon asked them–and not ODNI or CIA, both of which submitted declarations in this case–whether anything in her unclassified opinion was classified.

The final draft of this unclassified opinion was provided to the FBI several days ago, in order to give the Government an opportunity to object to the disclosure of any classified information that may have inadvertently found its way into this document.

The FBI?!? Why would the FBI be the entity to review this opinion, in which they have no apparent role?

Meanwhile, one of the assertions for which McMahon provides absolutely no support in her unclassified opinion is this one.

Most of what is sought in the facially overbroad request filed by the American Civil Liberties Union (“ACLU”) was properly withheld pursuant to one or more properly invoked exemptions that Congress wrote into the FOIA statute to guard against the disclosure of highly confidential and operational information–if, indeed, the Government has acknowledged that any such documents exist.

In her unclassified opinion, McMahon discusses at length why the government can withhold the (or one of the) OLC opinion on killing Awlaki we all know exists. But she says nothing about what makes a request for the evidence backing the Awlaki targeting (she says ACLU presented no evidence Khan was targeted) “facially overbroad.”

As I suggested the other day, it is perhaps judicious to assume that any big holes in McMahon’s ruling are dealt with, by necessity, in her classified Appendix. Note too that in addition to providing an overview of the ACLU request in her unclassified opinion, McMahon also includes–but doesn’t discuss at length–the ACLU’s full request as an Appendix itself.

All of which is my way of suggesting that one thing in McMahon’s classified Appendix is almost certainly a discussion of why the American people are not allowed to know what the government knows–or claims to know–about Awlaki’s ties to terrorism. And that, as part of her discussion, McMahon actually got into some of what the government knows (or claims to know) or how it claims to have learned it.

I’m not really interested in that–though I do hope the ACLU points out this big gap in her unclassified opinion in their appeal, because their request doesn’t seem overbroad to me, particularly since the government has made unclassified claims about Awlaki being an operational leader without supporting those claims.

But I want to reflect on what it suggests that the FBI–and not CIA or NSA intelligence–seems to be treated as the crown jewels of the Anwar al-Awlaki intelligence.

As I keep repeating, we know that on the day Umar Farouk Abdulmutallab tried to attack a Detroit bound plane, the day after the government first targeted Awlaki in a drone strike, the FBI did not believe Awlaki to be operational. And while there are other big claims against Awlaki–the toner cartridge plot that implicated other AQAP members more directly, for example (and yes, I know Fox and Judicial Watch are making new claims, but they’ve been debunked)–the key claim always comes back to the UndieBomb plot.

And yet the government has avoided–in the suit Awlaki’s father took against the government, in the Abdulmutallab trial, and in this FOIA–presenting this information in any antagonistic venue. Only when they had the opportunity to present the information in a venue where their interlocutors could not challenge the provenance of their claims–in the Abdulmutallab sentencing hearing–did the government make the legal claim that Awlaki was the operational leader they ultimately killed him for being.

Again, I hope the ACLU pursues a better explanation for why the government doesn’t have to present the same level of information they’d have to present in a trial, especially given that they’ve made unclassified claims about this stuff.

Because I find it damned telling that information they’ve protected so assiduously from the antagonistic challenges they would have faced in a terror trial appear to be the central secret they’re protecting here.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

6 replies
  1. emptywheel says:

    @Jeff Kaye: Yep, the asset thing (for both him and Khan–Khan even more so) is a real consideration.

    I increasingly believe that we DIDN’T have info tying Awlaki directly to the UndieBomb, but we set limits w/Awlaki somewhere, he exceeded them with Nidal Hasan (NOT w/Abdulmutallab), and so he had to be liquidated. And Khan did because he was buddies w/Awlaki.

    It gets more convoluted from there.

  2. Your Papers, Please says:

    O/T

    Senator Ron Wyden On FISA Reauthorization: ‘There’s Going To Be Extraordinary Anger’

    This week, President Barack Obama renewed the Foreign Intelligence Surveillance Act, despite his own misgivings about the law’s broad reach. The law allows the government to use warrantless wiretapping to monitor overseas phone calls and emails, and keeps the interpretations of the how the law can be applied secret from the public.

    Senator Ron Wyden (D-OR) spoke about his opposition to the application of the law.

    “When the public finds out that these secret interpretations are so dramatically different than what the public law says, I think there’s going to be extraordinary anger in the country. Because it’s one thing to have debates about laws but we assume that the law itself is public.”

    http://www.huffingtonpost.com/2013/01/04/senator-ron-wyden-fisa-reauthorization_n_2404873.html

  3. pdaly says:

    @Jeff Kaye:

    We all heard about the concept of “blowback” immediately after 9/11. Bin Laden, al Zawahiri, Ali Mohammed, al QaedA, etc. were at one point part of the US solution to the problem of the Soviet Union encroaching on US interests.

    I don’t hear the word blowback used anymore by TV commentators.

    You wonder about al-Awlaki being a dual/triple agent or sometime US asset. It’s a good point.

    I wonder as well about the 9/11 hijacker pilots. I have imagined before what if they had US green cards, from marrying US women with hispanic sounding names (as did Ali Mohammed)?

    Hypothetically speaking, April of 1999 would have been a good time for Atta, al-Shehhi, and Jarrah to have come to the US to marry, because it would afford them time to obtain green cards before 9/11. This would violate the published FBI timeline however, so perhaps the scenario would require the hijackers to have arrived under substituted middle names or with slightly different spellings of their names.

    Wouldn’t the war footing be an overstatement of the facts If the terrorist pilots were naturalized Americans or even merely green card holders at the time of 9/11? It would be a criminal case, with the US president never able to claim war powers? If yes, then this Achilles heel would have to be made a state secret to allow our current state of affairs.

    Lt. Col. Shaffer was accused of giving out state secrets when word spread that Able Danger had identified Atta in the Brooklyn cell pre-9/11. Shaffer’s attorney was quick to point out that Shaffer had not leaked top secret information only that Shaffer’s group merely linked Atta on paper to the Brooklyn cell. The pains Shaffer’s lawyer took to clarify that Shaffer did not ever state Atta was ‘on US soil at that early time’ seemed to be an indirect comment that such news would be Top Secret.

    It’s a good thing Massachusetts dropped its premarital medical exam soon after 9/11. I was never very good at geography, so if hypothetically speaking I ever met someone stating they were from the United Arab Emirates I could just see myself drawing a blank, thinking it was a generic term for the region of the world. And if a second person were to have followed soon thereafter and similarly stated they were from the United Arab Emirates and planned to study business, I might have thought they were being purposely vague and might have asked about their father’s background. Then if the late father was also from the United Arab Emirates but the mother was from a country with a recognizable name like Egypt, I might have mistakenly concluded to that person that perhaps they too were Egyptian. I did say this is all hypothetically speaking?
    In any case, I hope my geography knowledge has improved since finding the blogs like this one.

    I wonder what ever happened to blowback theories.

  4. orionATL says:

    having to kill awlaki without trial in order to hide the govt’s secret “security” activities fits into the same box as not being able to try guantanamo’s shackled slaves in a civilian court. in both cases there are facts and understandings that are sensitive and/or embarrassing which the our government wants to hide from our legislators and us.

    our secret paramilitary and its 11 year-old war small and weak terrorist organization has carried with it great costs with respect to depredationsnon our constitution (repeatedly ratified by the federal judiciary), great costs with respect to our world-wide reputation as an open democracy, and all for very poor return on increased security.

    it seems quite clear now that the “war on terror” never was designed to meet a severe secjrity need. instead it was designed to meet the political needs of american presidents and of the two political parties –

    five decades of wasted lives and wasted resource, all to meet the demands of the paranoid right and the political security needs of our presidents and other political leaders.

  5. matt carmody says:

    @pdaly: The attacks on the WTC and the Pentagon WERE a criminal act. The authorities in NYC under Giuliani and Kerik allowed the crime scene to be destroyed, shipping tons of steel to China where no forensic engineers could ever look at it, and never for a moment allowing those attacks to be considered the crimes that they were. There was no sovereign state that attacked the US, ergo, no declaration of war against the US aside from fatwas from religious authorities, and no legal rationale for the wars Bush instigated and Obama prosecutes to this day.

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