Garbage In, Garbage Out: The Problem with a FISA Drone Court

Since the Administration turned over the OLC memos authorizing the killing of Anwar al-Awlaki Thursday, there’s been a sudden surge of support for setting up a FISA type court for targeted killing (actually, for drone targeting; I guess Americans being killed by cruise missile or gun still won’t get due process).

There are a lot of problems with such a court, which I hope to explore at length in upcoming weeks.

But, in the same way John Brennan undermined the very premise of drone targeting in his hearing (by attesting that the judge and jury in the existing targeting program is not competent to serve as judge and jury), he also undermined the value of a FISA Drone Court.

In this exchange, Richard Burr finds a way to corner John Brennan into agreeing that he trusted information gotten in the torture program. Burr gets Brennan to admit that he submitted declarations to the FISA court that may have relied on information gained from torture.

Burr: I’m still not clear on whether you think the information from CIA interrogations saved lives.  Have you ever made a representation to a court, including the FISA court, about the type and importance of information learned from detainees including detainees in the CIA detention and interrogation program?

Brennan: Ahm, first of all, in the first part of your question, as to you’re not sure whether I believe that there has been information … I don’t know myself.

Burr: I said I wasn’t clear whether I understood, whether whether I was clear.

Brennan: And I’m not clear at this time either because I read a report that calls into question a lot of the information that I was provided earlier on, my impressions. Um. There, when I was in the government as the head of the national counterterrorism center I know that I had signed out a number of um affirmations related to the uh continuation of certain programs uh based on the analysis and intelligence that was available to analysts. I don’t know exactly what it was at the time, but we can take a look at that.

Burr: But the committee can assume that you had faith if you made that claim to a court or including the FISA court, you had faith in the documents in the information that was supplied to you to make that declaration.

Brennan: Absolutely. At the time if I had made any such affirmation, i would have had faith that the information I was provided was an accurate representation.

To corner Brennan, however, Burr also gets him to admit that a number of FISA-approved programs were probably based on torture.

The government was wiretapping people based on tortured confessions the Senate Intelligence Committee has now, a decade later, deemed unreliable.

And because of how rarely FISA-derived information gets double checked, we’ll never learn which wiretaps were approved based on tortured evidence.

Compare that to what has happened even in the Gitmo habeas cases, even with some limits on discovery. Because detainee lawyers got to challenge the information behind accusations, and because the source of accusations were somewhat public, it made it much easier to challenge the accusations from certain detainees, especially Abu Zubaydah, who had been tortured. Indeed, the government dropped a number of charges originally derived from Abu Zubaydah.

As a threshold matter, intelligence is different from evidence. And a FISA Court would be relying on the former.

But because it operates in secret, it would never be able to vet out the intelligence of dubious provenance, whatever the reason. It was torture 9 years ago when Brennan was making dicey declarations. We’re still seeing questionable allegations from informants work through the system (even in the regular courts!). It could be the self-interested claims of our foreign partners, setting up the death of someone they don’t like.

In the FISA Court, unlike a regular court, there’s no way to clean up Brennan’s torture-based declarations.

The very same day Congres started talking about a FISA Drone Court in earnest, John Brennan demonstrated how dodgy some of the representations submitted to the existing FISA Court have been. That ought to give us pause before we extend the court’s warrants to death, in addition to wiretaps.

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.

10 replies
  1. GMK says:

    What is this business about “having faith in representations” made in affirmations to the court? The whole point of stating facts under oath to a court is you are supposed to KNOW.

  2. GKJames says:

    Not to mention that the genesis of the Drone Court (Kill Court? Offing Court? Star Chamber #2?) idea was the heat-of-the-moment panic and the concern that Congress had to be seen as doing SOMETHING to address demands for transparency. True to form, the proposal is one intended to give appearances of doing something when, in fact, it’s the classic tactic of quash the problem with meaningless process.

    That said, if they did proceed with the idea, the process could in fact be elegantly simple. Give Judge Lamberth’s in-take clerk a new twin-set of rubber stamps: “Taps” and “Drones.” No need to distract the judges from their own vital stamping work on the government’s state secrets privilege arguments.

  3. orionATL says:

    i am very interested in the first sentence of this quote from glenn greenwald:

    “…Obama first tried to kill US citizen Anwar Awlaki in December 2009 (apparently before these justifying legal memoranda were concocted) using cruise missiles and cluster bombs; they missed Awlaki but killed 52 people, more than half of whom were women and children. Obama finally succeeded in killing Awlaki and another American, Samir Khan, in October 2011, and then killed his 16-year-old son Abdulrahman in a drone strike two weeks later…”

    i have speculated that the let’s-murder-a-citizen memos were post-hoc rationalizations.

    if the prez did decide to whack al-awlaki in 2009, what might it have been for?




  4. Jeffrey Kaye says:

    A bullshit court that decides a death penalty without the appropriate due process, which relies on dubious intelligence reports, is nothing more than a rubber stamp court, a modern star chamber complete with drone executors, the judges merely an assassin’s retinue.

  5. orionATL says:


    according to miss wiki:

    “… emeni sources originally said al-Aulaqi might have been killed in a pre-dawn air strike by Yemeni Air Force fighter jets on a meeting of senior al-Qaeda leaders at a hideout in Rafd, a remote mountain valley in eastern Shabwa, on December 24, 2009. But he survived. [113] Pravda reported that the planes, using Saudi Arabian and U.S. intelligence aid, killed at least 30 al-Qaeda members from Yemen and abroad, and that an al-Aulaqi house was “raided and demolished”. [114] On December 28 The Washington Post reported that U.S. and Yemeni officials said that al-Aulaqi had attended the al-Qaeda meeting. [115] Abdul Elah al-Shaya, a Yemeni journalist, said the former imam called him on December 28, said that he was well and had not attended the al-Qaeda meeting. Al-Shaya insisted that al-Aulaqi was not tied to al-Qaeda. He did not address whether he was connected to the Nigerian, Umar Farouk Abdulmutallab, who had tried to bomb the plane in Detroit on Christmas Day 2009. [116]…”

    using u.s. and saudi intelligence, yemeni planes made an attempt to kill al-a on dec 24, 2009.

    the undie bomber, to whom the u.s. gov ‘t tied awlaki, failed in his suicide bombing mission over detroit on dec 25, 2009.

    could this mean the u.s. knew in advance that abdultamullah was carrying a bomb?

  6. LakeEffectSnow says:

    Colonel Morris Davis, former Guantanamo prosecutor, on usa drone policy: ‘Since 9/11, we’ve been the constrained and the cowardly’

    Former Guantanamo chief prosecutor on ‘target killings’ and drones: ‘We need to stop and think about what it is we stand for’

  7. emptywheel says:

    @orionATL: The number of posts I’ve done on this topic are actually more detailed and careful than any of these.

    There were several strikes on two different days. The al-Majala strike, purportedly to stop an attack in planning, and the attempted strike on Awlaki and an AQAP person. al-Majala ended up killing some AQAP members and most of a Bedouin tribe. They missed Awlaki.

    As I have repeatedly noted, it is the official position of the IC that htey did not know Awlaki was operational when they first tried to hit him on 12/24/09. They claim they learned he was in teh aftermath of the UndieBomb plot the next day.

    There ARE some funky things abt the UB plot. There is a credible allegation he was helped through security by a seeming Indian man in Schipol (both Yemenis and Saudis might look Indian). There are reasons to doubt DOJ claims about what UB really testified to. UB tried to argue–w/expert background–that the explosives he had could not have blown up the plane.

    But we don’t know for sure about all those things. My biggest take is that we targeted a Bedouin tribe in Yemen, supposedly w/Yemeni and Saudi intell help, in teh name of stopping an imminent attack, and MISSED an imminent attack that was far more serious. The two together ended up creating more of a need for CT forces in Yemen, which might serve the interest of both the Saudis and Yemenis.

  8. 4jkb4ia says:

    This is why even Scott Shane figured out that you couldn’t use the FISA Drone Court in the heat of the moment, but it was more plausible to use it to put people on the government’s kill list. Either would involve 5th/6th Amendment issues (“no one should be deprived of life, liberty, or property without due process of law”). IANAL but due process of law would almost have to involve defense counsel, which would be easier in the second scenario. You could have a pool of people willing to be defense attorneys before this court if it has to be secret.

    I still did not watch the hearing YET, but there may be a block of 3 hours sometime this week.

  9. orionATL says:

    tx, ew for the comment and for the extraordinary sleuthing you’ve done on this important story.

    i’ve followed your complex map-making here way too long to be foolish enough to suggest to you what was long ago evident to you.

    for the brennan/al-a story du jour, my intuition is that the white paper is a whitewash, essentially a political snd legal amnesty for the prez and his executioner.

    the two dates dec24 and 25 could be taken to demonstrate that, i.e.,that they went after al-a a day before the mad nigerian tried to set his underware on fire. since strikes take some time to organize, it’s possible they decided to go after al-a weeks before – possibly out of frustration at another yet another, earlier failure to detect a muslim attack, that involving n. hassan.

    this reasoning may not reflect what actually happened, but it does raise questions about the admin’s story-telling, specifically any implication of their’s that there was a policy with solid legal reasoning behind it before any american citizen was targeted. we had, then, a profoundly inexperienced president only a few months in office and likely not in control of his military/paramilitary. we had, then also, highly experienced military bureaucrats working the white house. this would be a perfect situation to create a foolish, later problematic, action decision.

    we may need a long time to clean up the consequences of this dangerous, impulsive, unnecessary folly.

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