John Kerry has made not one, but two trips to Afghanistan to pursue his extra-constitutional “power sharing” agreement between Ashraf Ghani and Abdullah Abdullah that creates the completely new position of chief executive within the Afghan government. As was easily predicted, that plan now teeters near total failure. Clearly, Afghanistan’s constitution means nothing to John Kerry in his pursuit of US goals in that country.
In the daily press briefing yesterday at Kerry’s State Department headquarters, spokesperson Marie Harf had this remarkable exchange with a reporter, where we suddenly see that next door, in Pakistan, the constitution is of prime importance*:
QUESTION: One more quickly. What Imran Khan is saying and others in the country, including hundreds of thousands or millions of people in Pakistan, they are not happy with the current government, and Imran Khan is saying that those elections by Prime Minister Nawaz Sharif were fraud and fake and they were not legitimate or he’s calling that he should step down. That’s what I’m asking. I’m saying –
MS. HARF: He’s the prime minister, period.
QUESTION: Thank you.
QUESTION: So you’re not calling for Prime Minister Sharif to step down?
MS. HARF: I in no way am calling on that.
QUESTION: Does the United States support regime change in Pakistan?
MS. HARF: We support the constitutional and electoral process in Pakistan, which produced the Prime Minister of Nawaz Sharif. That was a process they followed, an election they had, and we are focused on working with Pakistan. And we do not support any extra-constitutional changes to that democratic system or people attempting to impose them.
How about that? In Pakistan, the State Department does “not support any extra-constitutional changes to that democratic system or people attempting to impose them”, while just across the border in Afghanistan, the Cabinet member in charge of the State Department is putting a huge amount of his own energy into an extra-constitutional change to the democratic system there.
Just three days ago, Kerry included this snippet in his letter of congratulations to Afghanistan on their independence day:
With millions of Afghans across your great nation braving violence and intimidation to cast their ballots, it is critical that all parties honor those voters’ aspiration for a democratic, peaceful transfer of power that unifies the country. We will continue to strongly support the democratic process and the agreement reached between the two candidates concerning the formation of a national unity government.
So Kerry claims he supports the democratic process and yet he wants it to produce a “national unity government” that is described nowhere in the constitution that enabled the voting. His real aim appears near the end of the letter:
With a timely resolution of the election and the signing of a Bilateral Security Agreement, I am confident that the next year will open an important new era in U.S.-Afghan relations.
For John Kerry, as well as the rest of the US government, it always has been and always will be about keeping those troops going (and those military contracts running).
Postscript: Did you notice the *asterisk above? I felt compelled to add it when I said that for the US, the constitution in Pakistan is of prime importance. There is a huge exception to that statement. The democratically elected government of Pakistan, whose constitutionality Harf is praising in her briefing, means absolutely nothing to the US when the US wishes to carry out a drone strike inside Pakistan’s borders, even when that same democratically elected government has made it clear that such actions are a violation of sovereignty.
Back in June, I compared the content of Charlie Savage’s account of the Awlaki drone memo with the content of the July 16, 2010 memo released that month. I noted that Savage reported the memo discussed whether killing Awlaki would violate the “ban” on assassinations in EO 12333, but the July memo did not. I suggested the earlier memo probably included that section.
Before Savage’s report turns to the consideration of 18 USC 1119 — which is where the memo starts its analysis — it describes a section considering whether the “ban” (in an unenforceable Executive Order that gets changed from time to time without notice in the actual text) on assassinations would prohibit such a killing.
It then considered possible obstacles and rejected each in turn.
Among them was an executive order that bans assassinations. That order, the lawyers found, blocked unlawful killings of political leaders outside of war, but not the killing of a lawful target in an armed conflict.
No discussion of assassination appears in the memo (unless it appears in a classified section and is not noted by the court opinion, but that seems unlikely as there’s no logical place for it). That said, the “ban” on assassinations did appear prominently in Harold Koh’s justification for drones given in March 2010.
Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”
This leads me to suspect the structure of the first memo may parallel the structure of Koh’s speech, with the assassination “ban” figuring prominently in that memo. That is, it seems likely Savage’s sources, in conflating the two memos (if that’s what they did), included that language because it appeared in the first memo.
Voila! The memo released Friday — dated February 19, 2010 — does indeed focus on the assassination “ban,” though much of that discussion, like the entire memo, remains redacted.
[T]he use of lethal force against Aulaqi would not violate the assassination ban in Executive Order 12333.
And if you add the length of the February (7 pages) and July (41 pages) OLC memos and round up, you get the rough page length Savage’s sources provided: 50 pages.
So it does seem that Savage’s sources just synthesized the two memos as one.
That said, comparing Koh’s March 2010 speech presumably incorporating OLC’s assassination discussion with the (overly redacted) memo raises another question.
Several words in the title of the memo remain redacted.
I wonder — and this is a guess — whether the redacted words pertain to using drones to executive an American citizen?
I ask that because Koh’s speech includes this paragraph about drones and other high tech weapons.
Second, some have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system used, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict– such as pilotless aircraft or so-called smart bombs– so long as they are employed in conformity with applicable laws of war. Indeed, using such advanced technologies can ensure both that the best intelligence is available for planning operations, and that civilian casualties are minimized in carrying out such operations.
That is, I wonder whether some significant part of the 7 pages David Barron originally dedicated to weighing Awlaki’s due process free execution pertained to whether using drones to kill him changed the legal question?
Another possibility for the redacted phrase is a reference to Yemen, though the 2nd Circuit has already deemed that unclassified. Or, perhaps, this memo started the discussion of CIA’s involvement in an execution, which would explain the focus on EO 12333, which governs their covert operations.
In any case, it does seem that the Administration self-justification evolved over the first half of 2010, and only later in the year did the Department of Justice consider whether there were laws that might prohibit CIA from executing a US citizen with no due process.
For years, defenders of the drone killing of Anwar al-Awlaki have always pointed to the second confession Umar Farouk Abdulmutallab made, implicating Awlaki in each and every part of his plot.
There were always problems with that. Several pieces of evidence indicate the drone attack on December 24, 2009 that missed Awalaki had specifically targeted him; at that point, the government did not consider Awlaki operational. Abdulmutallab made 3 confessions, and only the one made to the High Value Interrogation Group (HIG) after a month of isolation and in the context of a (I’ve heard second-hand, unbelievably generous) plea deal that was never finalized implicated Awlaki in planning his attack. Claims Awlaki helped Abdulmutallab make his martyrdom video don’t explain why AQAP’s best English language propagandist would make a video with a man schooled in English in Arabic. Subsequent evidence suggests actions attributed to Awlaki in that confession were probably taken by Fahd al-Quso and Nasir al-Wuhayshi.
In other words, there are a lot of holes in the confession always used to justify Awlaki’s drone killing. Abdulmutallab’s second confession should be treated the same as his first and third ones: a narrative crafted by someone who has a big incentive to shade the truth, and therefore of dubious reliability.
The release of yesterday’s ridiculously cursory OLC memo authorizing the drone killing of Anwar al-Awlaki introduces one more reason to doubt the narrative that claims Abdulmutallab’s second confession provided justification for Awlaki’s killing.
The memo relies not on what FBI has told OLC. It relies on CIA’s assessment that Awlaki is “a senior leader of al-Qa’ida in the Arabian Peninsula” based on “factual predicates as represented by the CIA and in the materials provided to use from the Intelligence Community.”Abdulmutallab’s second confession might be included in those materials provided from the IC. Even though the confession was obtained as part of a criminal investigation, the FBI is part of the IC, so broadly speaking that second confession would qualify, I guess.
But the assessment came not from FBI, which had the lead investigating the Undiebomb attack, but from the CIA. Which ought to give you pause, given that just months before this memo was written, the intelligence community’s partners had convinced the US that they hadn’t killed a Bedouin clan in the al-Majala strike. Indeed, the intelligence relating to Awlaki seemed to be consistently stinky until such time as the CIA set up its own drone base in Saudi Arabia in mid-2011.
Besides, what are we executing American citizens based on the CIA’s assessment for anyway?
At least according to David Barron, the case against Awlaki came not from FBI, but from CIA. That doesn’t mean CIA didn’t have evidence supporting its claims (and remember, CIA has a role in HIG, as does JSOC). But it does suggest Abdulmutallab’s second confession may not have the role the defenders of Awlaki’s execution like to cling to.
That’s all that current 1st Circuit Court Judge and then acting OLC head David Barron needed — in February 2010 — to dispense with niceties like the Constitution and Rule of Law before he okayed the drone killing of Anwar al-Awlaki.
Lucky for Barron — and President Obama — International Law scholar Kevin Jon Heller, never having seen that 7 page memo, raised some things Barron hadn’t considered. Which led Barron to write a still totally laughable but nevertheless less ridiculous 41-page memo 5 months later, which Barron’s friends insist is not-so-bad if you want to rationalize drone killing an American with no due process.
I wonder how they’ll defend Barron’s much more circumspect drone killing justification (especially since DOJ has redacted it beyond any legibility)?
I’ll have more to say about this latter — I suspect that it shows that DOJ actually tried on 3 different theories for drone-killing Awlaki.
But for the moment, know that if you ever come before Judge Barron, he believes he legitimize drone killing you in 7 pages or less.
On Brennan and the CIA, the RDI report has been transmitted, the declassified version that will be released at the pleasure of the Senate committee.
I have full confidence in John Brennan. I think he has acknowledged and directly apologized to Senator Feinstein that CIA personnel did not properly handle an investigation as to how certain documents that were not authorized to be released to the Senate staff got somehow into the hands of the Senate staff. And it’s clear from the IG report that some very poor judgment was shown in terms of how that was handled. Keep in mind, though, that John Brennan was the person who called for the IG report, and he’s already stood up a task force to make sure that lessons are learned and mistakes are resolved.
With respect to the larger point of the RDI report itself, even before I came into office I was very clear that in the immediate aftermath of 9/11 we did some things that were wrong. We did a whole lot of things that were right, but we tortured some folks. We did some things that were contrary to our values.
I understand why it happened. I think it’s important when we look back to recall how afraid people were after the Twin Towers fell and the Pentagon had been hit and the plane in Pennsylvania had fallen, and people did not know whether more attacks were imminent, and there was enormous pressure on our law enforcement and our national security teams to try to deal with this. And it’s important for us not to feel too sanctimonious in retrospect about the tough job that those folks had. And a lot of those folks were working hard under enormous pressure and are real patriots.
But having said all that, we did some things that were wrong. And that’s what that report reflects.
Amidst calls for Brennan’s firing, Obama basically responded, “Sure, we tortured some folks, but I still have confidence in the guy who found the waterboard and black sites at which to torture.”
But I’m not sure why folks are so surprised by Obama’s reluctance to criticize Brennan for lying about hacking the SSCI. Aside from the mutual complicity — Brennan was personal witness to each and every drone strike Obama approved that violated international law, after all — CIA Directors don’t get fired for lying.
They get fired for fucking their biographer.
In February 2011, around the time the CIA took over the hunt for Anwar al-Awlaki, NSA started collaborating with Saudi Arabia’s Ministry of Interior’s (MOI) Technical Assistance Directorate (TAD), under the umbrella of CIA’s relationship with MOI (it had previously cooperated primarily with the Kingdom’s Ministry of Defense).
On August 15, 2011, hackers erased the data on two-thirds of the computers at Saudi Aramco; American sources claim Iran was the culprit.
On September 30, 2011, CIA killed Anwar al-Awlaki, using drones operated from a base on Saudi soil.
On November 5, 2012, King Abdullah named close John Brennan ally Mohammed bin Nayef (MbN) Minister of the Interior; MbN had for some time been our top counterterrorism partner in the Kingdom.
On December 11, 2012, James Clapper expanded NSA’s Third Party SIGINT relationship with the Kingdom of Saudi Arabia, for the first time formally including the Ministry of Interior’s Technical Affairs Directorate.
Between January 14 and 16, 2013 MbN traveled to Washington and met with just about every top National Security person (many of whom, including Brennan, were just assuming new jobs). On January 16, MbN and Hillary Clinton renewed and expanded the Technical Cooperation Agreement initiated in 2008. The TCA was modeled on the JECOR program used from the late 1970s until 2000 to recycle US dollars into development programs in Saudi Arabia; in this more recent incarnation, the Saudis recycle dollars into things like a 30,000 mercenary army and other military toys for internal stability and border control. Last year’s renewal — signed just over a month after Clapper made the Saudis full Third Person partners – added cybersecurity to the portfolio. The TCA — both the existing security resources and its expansion under close ally MbN — shored up the power base of one of our closest partners (and at a time when we were already panicking about Saudi succession).
In other words, in addition to expanding Saudi capabilities at a time when it has been cracking down on peaceful dissent, which is what the Intercept story on this document discusses, by giving the Saudi MOI Third Party status, we added to the power of a key ally within the royal family, and did so at a time when the TCA was already shoring up his power base.
We did so, the Information Paper makes clear, in part because MOI has access to internal Saudi telecommunications. While the Information paper talks about AQAP and Iran’s Republican Guard, they are also targeting Saudi targets.
And these new capabilities? They get coordinated through Chief of Station in Riyadh, the CIA. John Brennan’s agency.
It’s all very tidy, don’t you think?
Back when we last saw Judge Colleen McMahon in the ACLU/NYT drone killing FOIA, she reluctantly shut down those FOIA bids. Since then, of course, the government kept blathering about its drone programs — including releasing a white paper so John Brennan could become CIA Director — leading the 2nd Circuit to order the government to release the drone killing memo and have McMahon review the others for release.
The government tried to welch on that part of the order though, twice asking McMahon to let them file a motion for summary judgment regarding what it should and should not have to disclose. The ACLU and NYT were not amused with the government’s attempts to rewrite the 2nd Circuit’s order.
You know who was even less amused? Judge McMahon.
This court will not be entertaining arguments about the applicability of FOIA exemptions to the legal memoranda that the Government must produce before complying with the mandate. Instead, it will follow the mandate to the letter: I will analyze the legal memoranda that were not previously produced (either to this court or to the Second Circuit) to see if the Government has waived its right to invoke any FOIA exemptions. I will do that before I do anything else, and I will do it on the schedule I set.
There is no need to conduct any “careful review,” let alone any “inter-agency review” before producing the documents in accordance with the mandate. The Circuit’s order that they be produced for in camera inspection is clear and admits of no argument or exception. Frankly, the Government’s bald assertion, in its letter of July 7, 2014, that it gets to decide “whether any of those documents, or particular portions thereof, fall within the scope of the waiver found by the Second Circuit” would be offensive if it were not so laughable. The Second Circuit directed this court to make that determination, in light of the rulings it has made. And so I shall. [emphasis original]
Remember, McMahon made it clear that before the government kills someone for treason, they’re supposed to make their case before an Article III Judge.
She seems to be getting weary of the government’s usurpation of her job.
In very much related news, the 2nd Circuit just told the government it actually has to provide a functional Vaughn Index. It, too, appears to be weary, this time of the government’s repeated efforts to expand the universe of titles of documents it doesn’t have to disclose.
It is far too late in the day to fail to identify by specific numbers the “other” listings. The Government’s claim that “space constraints” in the rehearing petition preclude the requisite specificity, see Petition 15, is without merit. Any additional numbers could have been included in one or two lines of type in the blank bottom one-third of the last page of the petition.
Imagine that. The government might actually have to release more details of how it uses drones to kill US citizens.
Two days before the Administration was due to release a memo laying out its rationale for drone-killing American citizen Anwar al-Awlaki, AQAP released a video that challenges the narrative the Administration has used for doing so.
As Gregory Johnsen reports, the memo shows (see correction below)
former Gitmo detainee Said al-Shihri embracing Umar Farouk Abdulmutallab, then whispering in his ear.
In the video, Shihri says he was the head of external operations — the title the US always used to describe Anwar al-Awlaki.
The video says that it was Shihri — not Awlaki — who was “responsible for external operations against America.” For years, the Obama administration has argued the opposite, claiming that Awlaki was directing AQAP’s efforts against the U.S., including the failed underwear bomb on an airliner over Detroit on Christmas Day 2009.
On the day Awlaki was killed, Obama called him “the leader of external operations for al-Qaeda in the Arabian Peninsula” and said he “directed” the 2009 attack. The video appears to refute both claims, giving credit to Shihri, the former Guantanamo Bay detainee.
Halfway through the video there is a clip of Shihri embracing Umar Farouk Abdulmutallab, the underwear bomber in the Christmas Day attack, and whispering in his ear as a narrator reads that the attack was conducted “under the direct supervision of (Shihri) and a number of his brothers in the section in charge of external operations.”
While there may be some disagreement about how best to translate Shihri’s role — “directed” or “supervised” — this video clearly says that Shirhi was in charge, directly to the contrary to the narrative DOJ released purportedly summarizing Abulmutallab’s confession (the one that conflicted in key ways with his two other confessions).
What Johnsen doesn’t say — but is clear from comparison — is that that embrace took place while Abdulmutallab was dressed to make his martyrdom video.
Compare this frame, which appears just after the embrace in the new video (at 21:54),
With this one from Abdulmutallab’s martyrdom video (at 0:52).
That’s important because arranging to make the martyrdom video is one of the tasks DOJ’s narrative says Awlaki did.
Awlaki told defendant that he would create a martyrdom video that would be used after the defendant’s attack. Awlaki arranged for a professional film crew to film the video. Awlaki assisted defendant in writing his martyrdom statement, and it was filmed over a period of two to three days. The full video was approximately five minutes in length.
Shihri’s presence at the making of Abdulmutallab’s martyrdom video doesn’t refute the claim that Awlaki had a role in making it (though none of the experts I have asked has ever given a remotely credible explanation why AQAP’s greatest English-language propagandist and someone formally schooled in English would make a martyrdom video in Arabic). But it does place him there, suggesting Awlaki was not the only one directing the production of the video, if he had a role at all.
This video definitely doesn’t prove that Awlaki didn’t have an operational role in the UndieBomb attack. But it shows that the narrative the government released — which Abdulmutallab’s lawyer said had been made in the context of a plea deal never finalized and which the government agreed not to rely on at the trial, where it could have been challenged — neglects not just the role of Fahd al-Quso, but also Said al-Shihri. It is, at the very least, incomplete in some important ways.
And yet that is the only public “proof” the government has ever released that justified their execution of Anwar al-Awlaki.
Update: Apparently al-Shihri isn’t the one portrayed in this video, Nasir al-Wuhayshi is. In which case this connection is not meaningful.
Jason Leopold has a long piece on Sabrina de Sousa, the former CIA operative who got screwed over in the aftermath of the Abu Omar rendition.
Leopold’s piece focuses on de Sousa’s efforts to call attention to how stupid the rendition was. He includes her correspondence with a range of people — from Condi Rice to Colin Powell to Hillary to Dianne Feinstein’s staff – she tried to reach out to. As such, Leopold’s piece is yet another case showing the intelligence whistleblowers can’t use “proper channels” to expose wrong-doing they find.
But I wanted to focus on a more narrow point de Sousa makes about Abu Omar’s rendition, one that — in the wake of the release of the Awlaki killing memo – is of particular significance. One problem with Abu Omar’s rendition, de Sousa notes, is that none of the conditions normally present for extraordinary renditions were present. The fact that Italy was already closely watching him meant the US didn’t have to intervene to neutralize him.
There was nothing definitive in the classified cables, De Sousa says, about the threat the CIA said Abu Omar posed to national security as the rendition operation was being planned. “The cable was full of ‘suspected of,’ ‘alleged to.’ Nothing that said ‘he was responsible for.’ Nothing definitive,” De Sousa says.
De Sousa describes her CIA colleagues in Rome and Cairo as acting like keystone cops in the aftermath of Abu Omar’s rendition, trying to figure out who had the evidence against him to present to Egypt so he could be prosecuted.
“The CIA station chief in Cairo said to Jeffrey Castelli [CIA station chief in Rome] ‘Where’s the evidence?’ Castelli said, ‘I thought you had the information.’ And Cairo said, ‘We don’t have it. We thought you had it.’ Castelli says, ‘We don’t have it.’ Then Cairo says, “We issued this arrest warrant on your behalf. So where is the evidence?” The blunder ultimately forced Egypt to set Abu Omar free.
“This is exactly when the whole cover-up started,” she says. “It turns out there was a big miscommunication between Cairo Station and Rome Station. There wasn’t any prosecutable evidence against Abu Omar. It’s why he was never picked up by the Italians. But Castelli decided he wanted a rendition and he got one.”
“Abu Omar was a nobody,” De Sousa says. “The renditions are meant for imminent, very dangerous threats and [are meant to be used in]countries that are incapable of laws that would allow them to pick up people who pose threats to national security. They’re not meant for a country like Italy already following the guy around.”
Those trying to dismiss the seriousness of the Anwar al-Awlaki memo, after all, say it’s not that big of a deal, given that most Americans of concern would be in places — like, say, Milan — where they could easily be seized by local authorities, and therefore would never need to be drone killed.
And rendition is obviously the step short of drone killing. There’s little risk CIA will start flying drones over Milan (and if they did, Italy has the capability to shoot them down).
Nevertheless, the Abu Omar case is one reason why you can never say the conditions laid out in the memo will always protect Americans from being drone killed — or just as likely, simply killed — based on claims about a country’s ability to arrest and turn over someone.
Those same conditions should have protected Abu Omar. Yet, because some guy was bucking for a promotion, they didn’t.
Three years ago, I wrote a long post called the Drone War on Westphalia arguing that our use of drones was eroding state sovereignty in ways we hadn’t considered — much less debated — the impact of.
[W]e risk trading a failed state in pursuit of what the Executive Branch, often in secret, defines as our national interest. It not only risks exacerbating the risk failed states represent around the world–and the further proliferation of terrorism–but as Spencer lays out, the fact that the Executive can do so without balancing the political cost of doing so changes our relationship with our government. (It is no accident, I think, that these changes in strategy are occurring at precisely the same moment both parties are cooperating to dismantle the social safety network.)
Now, for the record, I’m not entirely certain whether chipping away at sovereignty is a good thing–will it allow oppressed people to band together to fight the global elite, or a terrible thing–will it allow weaponized elites to turn average people back into serfs in exchange for the security the nation-state used to offer (though of course I’ve repeatedly suggested we’re headed for the latter condition). But our elected representatives are wittingly and unwittingly pursuing policies that accelerate the process.
So there are two public debates that we’re not having. First, there’s the debate about what standard the Executive needs to use before he assassinates a US citizen with no due process, or what standard the Executive needs to use before he launches new “hostilities” with no congressional mandate. Those are the old-style debates about public accounting that the Executive is using secrecy to try to avoid.
But there’s a larger debate we need to be having. Our system of governance is changing, subtly but increasingly radically, with no discussion. Drones are one symptom and one catalyst of that. And before the consent of the governed is completely eliminated, it’d be nice to have a “public debate” about it.
Today, as part of a larger study on the impact of our use of drones, the Stimson Center makes a very similar argument I did.
Erosion of sovereignty norms: The US government takes the view that it has a legal right to use force in the territories of foreign sovereign states when those states are“unwilling or unable” to take what the United States considers appropriate action to eliminate what it sees as imminent threats. But inevitably, assessments of what constitutes an imminent threat to the United States and what would constitute appropriate action are somewhat subjective in nature; the United States may view the use of force as justified even when US allies and partners do not. The US use of force in sovereignnations whose consent is questionable or nonexistent may encourage other states tofollow suit with their own military platforms or commercial entities.
Democratic Accountability: Increased US reliance on lethal UAVs in cross-border targeted strikes also poses challenges to democracy and the American system of checks and balances. While we understand the administration’s reasons for considering additional transparency difficult, the effect of the lack of transparency is that the United States has been fighting what amounts to a covert, multi-year killing program. Without additional information, the citizenry cannot evaluate US targeted strikes.