Drones

NY Times, Reuters Whitewash US Drone Strike Killing of Mehsud From Taliban Reasons for Karachi Airport Attack

Karachi’s Airport has resumed operations today, but a deadly late night attack shut it down for many hours overnight. It appears that ten militants entered the airport Sunday night, most likely uniformed as airport security personnel, and killed up to 18 people before they were killed by airport security and rapidly responding military units. The TTP, Pakistan’s Taliban, has claimed responsibility for the attack. The New York Times and Reuters, however, chose to be very selective in how they reported the TTP’s claim of responsibility. Both news outlets left out the TTP’s prominent mention of the US drone strike in November that killed TTP leader Hakimullah Mehsud in describing the TTP’s reasons for the attack. By contrast, AP and the Washington Post included the TTP’s reference to the drone strike.

Here is how the Post article opens:

Heavily armed gunmen disguised as security forces attacked Karachi’s international airport Sunday night, killing at least 18 people before government troops regained control early Monday. The Pakistani Taliban claimed responsibility for the assault, which appeared to dash hopes for peace talks.

The government said all 10 of the attackers were killed in more than five hours of fighting at the airport, which would bring the total number of deaths to 28. A doctor at Karachi’s Jinnah Hospital said 18 bodies were brought to the morgue there and that 11 of the dead were airport security personnel, the Associated Press reported. The bodies of the attackers remained in police custody.

In a statement Monday, Shahidullah Shahid, a spokesman for the Pakistani Taliban, said the attack was in response to recent Pakistani military airstrikes in northwestern Pakistan and to a U.S. drone strike in November that killed Hakimullah Mehsud, the leader of the radical Islamist group.

Shahid added the attack should be viewed as a sign that Prime Minister Nawaz Sharif’s efforts to engage the group in peace talks had failed.

“The message to the Pakistani government is that we are still alive to react to the killings of innocent people in bomb attacks on their villages,” said Shahid, adding the attack followed months of intensive planning.

The AP article twice mentions the attack as in response to the drone killing of Mehsud, and although it mentions Pakistan’s airstrikes in the tribal regions after peace talks broke off, it doesn’t tie those air strikes to the TTP reasons for the attack. The Times and Reuters, in contrast, only tie the attack to the air strikes and not to the Mehsud drone strike. From the Times:

 The Pakistani Taliban claimed responsibility Monday for a ferocious overnight assault in Karachi that stretched into the morning in which gunmen infiltrated Pakistan’s largest international airport and waged an extended firefight against security forces that resulted in 29 deaths and shook the country’s already fragile sense of security.

The attack “was a response to the recent attacks by the government,” Shahidullah Shahid, a spokesman for the Taliban, said by telephone. “We will continue carrying out such attacks.” He insisted, however, that the group was seeking to resuscitate peace talks with the government.

And from Reuters:

The Pakistani Taliban, an alliance of insurgent groups fighting to topple the government and set up a sharia state, said they carried out the attack in response to air strikes on their strongholds near the Afghan border and suggested their mission was to hijack a passenger plane.

“It is a message to the Pakistan government that we are still alive to react over the killings of innocent people in bomb attacks on their villages,” said Shahidullah Shahid, a Taliban spokesman.

“The main goal of this attack was to damage the government, including by hijacking planes and destroying state installations.”

Pakistan’s Dawn News gives the broader range of TTP explanations:

The TTP further said: “It’s just the beginning, we have taken revenge for one (Mehsud), we have to take revenge for hundreds.”

/snip/

Shahidullah Shahid moreover dismissed the Pakistani government’s peace talks methodology as a “tool of war”.

Shahidullah Shahid said the attack was planned much earlier but had been postponed due to the peace talks.

The TTP spokesman in a statement issued to the media said that the attack was also carried out to avenge the killing of Hakimullah Mehsud in a US drone strike.

“We carried out this attack on the Karachi airport and it is a message to the Pakistani government that we are still alive to react over the killings of innocent people in bomb attacks on their villages,” TTP spokesman Shahidullah Shahid said.

Pakistani Taliban claimed responsibility for the attack, saying it was revenge for the army’s air strikes in areas along the Afghan border where the insurgents are based.

By citing only Pakistan’s air strikes against the TTP, the New York Times and Reuters portray the Karachi airport attack as a problem that is solely due to politics internal to Pakistan. That is a gross misrepresentation of the situation, as the US drone strike on Hakimullah Mehsud came at an extremely critical time when the peace talks first began to look like a concrete possibility. That US strike was a huge external intervention by the US and clearly put Pakistan on a path to even more bloodshed. At least the Washington Post and AP allow their readers to see that blowback for US intervention played a significant role in this attack.

Government Appears to Be Trying to Hide 3 Other OLC Memos in the Awlaki Memo

The Government is trying to quasi appeal the 2nd Circuit’s order to turn over information on the Awlaki killing (in part, it appears, to claim the CIA was not involved in the killing after all!). It appears to be hiding a number of references to other OLC memos (and one memorandum that may not be from OLC and another to OLC). Among the other things it lists that the 2nd Circuit said should be released but which the government would like censored are the following:

  • the citation to and description of an OLC memorandum cited at page [redacted]
  • the citation to and description of an OLC memorandum cited at pages [redacted]
  • a citation to a memorandum to OLC at page [redacted]
  • the citation and description of a memorandum at page [redacted]

[snip]

  • the citation to and description of an OLC memorandum at pages 16 nn. 14 & 16

Admittedly it’s possible the three references to the memos are to the same memo, but from the syntax it doesn’t sound like it. The thing is, the government gets to hide OLC memos by claiming they weren’t finalized. But if the government is citing them in a finalized memo, then it is relying on them. Then they’re finalized, aren’t they?

The Administration’s Non-Appeal Appeal on the Awlaki Memo

The Administration has informed the 2nd Circuit it won’t appeal its order to release the Anwar al-Awlaki memo. (h/t Mike Scarcella)

But it is going to ask nicely that the Circuit reconsider some of its instructions on redactions.

Granted, we knew they were going to try to hide that CIA conducts the drone killing, and some other details (perhaps even that the drone killing happened in Yemen).

But they insist on doing this ex parte.

The government does not intend to seek further review of the Court’s ruling that the OLC-DOD Memorandum may not be withheld in full under the Freedom of Information Act (“FOIA”). The government does intend, however, to seek panel rehearing, and alternatively, rehearing en banc, with respect to certain parts of the Court’s opinion and its proposed redactions.

[snip]

The government intends to seek rehearing to protect certain information in the Court’s opinion, the Court-redacted version of the OLC-DOD Memorandum, and the OLC classified Vaughn index ordered disclosed by the Court. In the government’s view, that information is properly classified, protected from disclosure by statute, and/or privileged, and therefore exempt under FOIA Exemptions 1, 3, and/or 5, 5 U.S.C. § 552(b)(1), (3), and/or (5), even if the OLC-DOD Memorandum cannot be withheld in its entirety under FOIA. Some of the information appears to have been ordered disclosed based on inadvertence or mistake, or is subject to distinct exemption claims or other legal protections that have never been judicially considered.

Of course, the Administration got David Barron confirmed before this was resolved (that was naive response from Mark Udall and Ron Wyden, in my opinion — I wouldn’t trust the Administration’s word after this!).

And now they’re going to make a secret bid to keep the jist of the report (likely everything that hasn’t already been published in the white paper) secret.

Pakistani Troops Seize Miram Shah. Does That Remove Drone Strike Justification?

Aside from a May 14 drone strike described as being on the border between Pakistan and Afghanistan, there have been no documented US drone strikes in Pakistan since December 26 of last year. The Bureau of Investigative Journalism links this break in drone strikes to the peace talks that Pakistan has been engaged in with the Taliban. On the surface, then, one might expect this week’s offensive carried out by Pakistani troops in the North Waziristan stronghold of the terrorists targeted by the US to signal both the end of the peace talks and the opportunity for the CIA to re-start its drone campaign. As the New York Times reports, the peace process does appear to be dead:

Analysts cautioned that the surge in fighting did not appear to be the start of a much-anticipated military offensive across North Waziristan — a longstanding demand of American officials. But it did appear to spell an effective end to faltering peace talks between the government and the Pakistani Taliban.

“The talks will fizzle out if this campaign continues,” said Talat Masood, a retired general and political analyst. “The military leadership feels the militants aren’t serious about talking — and I think the civilian leadership is starting to see that too.”

But note that even though this isn’t seen as the beginning of a major offensive, Pakistani troops are now in control of Miram Shah:

Pakistani soldiers seized control of a neighborhood dominated by foreign Islamist militants in the North Waziristan tribal district on Thursday as part of the most concerted military operation in the area in several years, a senior security official said.

Over 1,000 troops, backed by tanks and helicopter gunships, moved after dawn into a neighborhood on the edge of the district’s main town, Miram Shah, that had become a sanctuary for Uzbek and Chinese fighters, said the official, who spoke on the condition of anonymity.

If Miram Shah and its surrounds are now under the control of the Pakistani military, then one of the Obama administration’s criteria for use of drones could well no longer apply to the area. See this post by bmaz on the issue of “Kill or Capture”. While the central issue in that analysis is the decision to kill US citizen Anwar al-Awlaki, we see that one of the justifications trotted out by the Obama administration was that al-Awlaki could not be captured to be brought to trial. The claim could well have been bogus, as bmaz states:

Who says there was no way between the combined capabilities of the US and Yemen Awlaki could not at least be attempted to be captured?

But with the Pakistani military now controlling Miram Shah, shouldn’t they be in a position to capture terrorists that the US wants to be taken out of action? That is, if they haven’t already been killed by the offensive:

“Troops used explosives to blow up more than a hundred houses belonging to militants in Machis Camp,” an intelligence official in Miramshah said. He added that artillery and helicopter gunships were targeting militant hideouts while troops on the ground had begun a door to door search operation for militants.

The military also targeted suspected militant hideouts in the nearby town of Mirali. “The troops have destroyed about 300 shops in the main Mir Ali bazaar,” a local official told AFP.

A spokesman for Inter Services Public Relations insisted the security forces were carrying out a ‘sanitisation’ operation in response to heavy shelling from militants on security installations in Miramshah following Wednesday’s air strikes in North Waziristan.

Today’s figures put the death toll in this week’s operation at more than 80.

It remains to be seen whether the CIA will re-start drone strikes around Miram Shah. While the peace talk process appears to be dead, if the military continues to hold some of the prime territory where US targets have resided, carrying strikes on those sites may be subject to a different prohibition.

Obama to Release OLC Memo after Only 24 Congressional Requests from 31 Members of Congress

Congratulations to Rand Paul, who, having made request number 24, has finally gotten the Administration to agree to publicly release the OLC memo authorizing the drone killing of Anwar al-Awlaki.

Here, for posterity, is a record of the at least 24 requests from at least 31 members of Congress for this memo.


 

February 2011: Ron Wyden asks the Director of National Intelligence for the legal analysis behind the targeted killing program; the letter references “similar requests to other officials.” (1) 

April 2011: Ron Wyden calls Eric Holder to ask for legal analysis on targeted killing. (2)

May 2011: DOJ responds to Wyden’s request, yet doesn’t answer key questions.

May 18-20, 2011: DOJ (including Office of Legislative Affairs) discusses “draft legal analysis regarding the application of domestic and international law to the use of lethal force in a foreign country against U.S. citizens” (this may be the DOJ response to Ron Wyden).

October 5, 2011: Chuck Grassley sends Eric Holder a letter requesting the OLC memo by October 27, 2011. (3)

November 8, 2011: Pat Leahy complains about past Administration refusal to share targeted killing OLC memo. Administration drafts white paper, but does not share with Congress yet. (4) 

February 8, 2012: Ron Wyden follows up on his earlier requests for information on the targeted killing memo with Eric Holder. (5)

March 7, 2012: Tom Graves (R-GA) asks Robert Mueller whether Eric Holder’s criteria for the targeted killing of Americans applies in the US; Mueller replies he’d have to ask DOJ. Per his office today, DOJ has not yet provided Graves with an answer. (6) 

March 8, 2012: Pat Leahy renews his request for the OLC memo at DOJ appropriations hearing.(7)

June 7, 2012: After Jerry Nadler requests the memo, Eric Holder commits to providing the House Judiciary a briefing–but not the OLC memo–within a month. (8)

June 12, 2012: Pat Leahy renews his request for the OLC memo at DOJ oversight hearing. (9)

June 22, 2012: DOJ provides Intelligence and Judiciary Committees with white paper dated November 8, 2011.

June 27, 2012: In Questions for the Record following a June 7 hearing, Jerry Nadler notes that DOJ has sought dismissal of court challenges to targeted killing by claiming “the appropriate check on executive branch conduct here is the Congress and that information is being shared with Congress to make that check a meaningful one,” but “we have yet to get any response” to “several requests” for the OLC memo authorizing targeted killing. He also renews his request for the briefing Holder had promised. (10)

July 19, 2012: Both Pat Leahy and Chuck Grassley complain about past unanswered requests for OLC memo. (Grassley prepared an amendment as well, but withdrew it in favor of Cornyn’s.) Leahy (but not Grassley) votes to table John Cornyn amendment to require Administration to release the memo.

July 24, 2012: SSCI passes Intelligence Authorization that requires DOJ to make all post-9/11 OLC memos available to the Senate Intelligence Committee, albeit with two big loopholes.

December 4, 2012: Jerry Nadler, John Conyers, and Bobby Scott ask for finalized white paper, all opinions on broader drone program (or at least a briefing), including signature strikes, an update on the drone rule book, and public release of the white paper.

December 19, 2012: Ted Poe and Tredy Gowdy send Eric Holder a letter asking specific questions about targeted killing (not limited to the killing of an American), including “Where is the legal authority for the President (or US intelligence agencies acting under his direction) to target and kill a US citizen abroad?”

January 14, 2013: Wyden writes John Brennan letter in anticipation of his confirmation hearing, renewing his request for targeted killing memos. (11)

January 25, 2013: Rand Paul asks John Brennan if he’ll release past and future OLC memos on targeting Americans. (12)

February 4, 2013: 11 Senators ask for any and all memos authorizing the killing of American citizens, hinting at filibuster of national security nominees. (13)

February 6, 2013: John McCain asks Brennan a number of questions about targeted killing, including whether he would make sure the memos are provided to Congress. (14)

February 7, 2013Pat Leahy and Chuck Grassley ask that SJC be able to get the memos that SSCI had just gotten. (15)

February 7, 2013: In John Brennan’s confirmation hearing, Dianne Feinstein and Ron Wyden reveal there are still outstanding memos pertaining to killing Americans, and renew their demand for those memos. (16)

February 8, 2013: Poe and Gowdy follow up on their December 19 letter, adding several questions, particularly regarding what “informed, high level” officials make determinations on targeted killing criteria.

February 8, 2013: Bob Goodlatte, Trent Franks, and James Sensenbrenner join their Democratic colleagues to renew the December 4, 2012 request. (17)

February 12, 2013: Rand Paul sends second letter asking not just about white paper standards, but also about how National Security Act, Posse Commitatus, and Insurrection Acts would limit targeting Americans within the US.

February 13, 2013: In statement on targeted killings oversight, DiFi describes writing 3 previous letters to the Administration asking for targeted killing memos. (18, 19, 20)

February 20, 2013: Paul sends third letter, repeating his question about whether the President can have American killed inside the US.

February 27, 2013: At hearing on targeted killing of Americans, HJC Chair Bob Goodlatte — and several other members of the Committee — renews request for OLC memos. (21)

March 11, 2013: Barbara Lee and 7 other progressives ask Obama to release “in an unclassified form, the full legal basis of executive branch claims” about targeted killing, as well as the “architecture” of the drone program generally. (22)

April 10, 2013: Bob Goodlatte and John Conyers send Obama a letter threatening a subpoena if they don’t get to see the drone killing memos. (23)

March 27, 2014: Alan Grayson holds hearing with drone victim, calls for more transparency over decision making.

April 21, 2014: 2nd Circuit orders Administration to release redacted version of OLC memo to ACLU and NYT.

May 5, 2014: Rand Paul issues veto threat for David Barron’s confirmation unless Administration releases OLC memo (already ordered for release by 2nd Circuit). (24)

May 20, 2014: The Most Transparent Administration Evah™ announces it will release (what is certain to be a highly redacted version of) the OLC memo.


Members of Congress who requested the memo:

  1. Ron Wyden
  2. Dianne Feinstein
  3. Saxby Chambliss
  4. Chuck Grassley
  5. Pat Leahy
  6. Tom Graves
  7. Jerry Nadler
  8. John Conyers
  9. Bobby Scott
  10. Ted Poe
  11. Trey Gowdy
  12. Rand Paul
  13. Mark Udall
  14. Dick Durbin
  15. Tom Udall
  16. Jeff Merkley
  17. Mike Lee
  18. Al Franken
  19. Mark Begich
  20. Susan Collins
  21. John McCain
  22. Bob Goodlatte
  23. Trent Franks
  24. James Sensenbrenner
  25. Barbara Lee
  26. Keith Ellison
  27. Raul Grijalva
  28. Donna Edwards
  29. Mike Honda
  30. Rush Holt
  31. James McGovern

How David Barron Played Judge and Jury for Anwar al-Awlaki

Rand Paul has gone and united drone apologists and opponents with an op-ed explaining his opposition to David Barron’s confirmation without full transparency on the drone memos Barron wrote. It’s a good op-ed, though the only new addition from what he has said before is that any other drone memos Barron has written ought to be on the table as well.

It’s Ben Wittes’ and David Cole’s responses that I’m reluctantly interested in.

In addition to a lot of “trust me I know the man” defenses from Cole that I find utterly inappropriate for a lifetime appointment, both Cole and Wittes argue we’ve already seen the “Administration’s” logic on drone killing, so we have no need to see the memo itself. Cole cautiously doesn’t characterize what that standard is in his defense.

Second, the administration has in fact made available to all Senators any and all memos Barron wrote concerning the targeting of al-Awlaki – the core of the issue Sen. Paul is concerned about.  So if Sen. Paul and any other Senator want to review Barron’s reasoning in full, they are free to do so.  Moreover, the administration also made available to the Senate, and ultimately to the public, a “White Paper” said to be drawn from the Barron memo (though written long after he left office).  Thus, no Senator need be in the dark about the Administration’s reasoning, and the public also has a pretty good idea as well.

Wittes, less wisely, does.

This idea of a trial in absentia followed by drone strike as a means of effectuating a death sentence is novel—and very eccentric. Paul never seeks to explain why wartime authorities are inappropriate for dealing with a senior operational leader of an enemy force who is actively plotting attacks on the United States. 

[snip]

The legal standard for targeting a U.S. citizen the administration has embraced is limited to U.S. citizens (1) who are operational leaders of AUMF-covered groups, (2) who pose an imminent threat, (3) whose capture is not feasible, and (4) whose targeting is consistent with the law of armed conflict. Suspects in Germany or Canada or any other governed space would almost surely be feasible to capture and if not, because in a hostage-like situation, would be dealt with by law enforcement, including using law enforcement’s powers at times to use lethal force. The definition of the group of citizens covered is so narrow, in reality, that it has so far described a universe of exactly one person—Al Awlaki—whom the administration has claimed the authority to target.

Wittes, you see, is certain that not only did the Administration have evidence Anwar al-Awlaki was a “senior operational leader” of AQAP by the time they executed him, but they had that evidence by July 2010 when Barron signed a memo saying that the specific circumstances at hand justified killing Awlaki. But even if he’s seen it via some magic leak, the public has not.

As I’ve noted repeatedly — and as Lawfare has been sloppy about in the past — at the time Barron signed off on Awlaki’s execution, one of the chief pieces of evidence against Awlaki — a confession Umar Farouk Abdulmutallab had given as a proffer in a plea deal that never got consummated – was undermined by Abdulmutallab’s previous confession and other evidence (and would be undermined further, just days after Awlaki’s execution, when Abdulmutallab pled guilty without endorsing the claims about Awlaki included in that confession).

Now, I suspect the government didn’t present that nuance to Barron when he wrote his memo (just as the government lied to John Yoo and a series of other OLC lawyers as they wrote torture memos). I imagine the memo starts with a caveat that says, “Assuming the facts are as you present them and no other facts exist,” absolving Barron in case the government presented only partial evidence or worse, as it appears to often do in the case of OLC memos.

But it is possible that the government gave Barron really nuanced information, and he nevertheless rubber stamped this execution, in spite of the possibility that the case Awlaki was a senior operational official of AQAP by that point was overstated. It’s possible too that there’s a great deal of evidence to counterweigh the very contradictory information on the chief claim in the public record and absent any contrary evidence Barron thought it was a conservative legal decision.

One way or another, Barron participated in a tautological exercise in which the government presented unchallenged evidence showing that Awlaki was a senior operational leader that then served as justification for setting aside due process and instead having OLC — Barron – weigh whether or not Awlaki was a senior operational leader who could be executed with no due process.

This is why (egads) Paul is right and Wittes is wrong. Because the idea of a trial before you execute an American citizen is in fact the rule, and the idea of having an OLC lawyer judge all this in secret is in fact the novelty. It doesn’t matter whether the case laid out against Awlaki applies to him and him alone (though I doubt it does; I doubt it applies as well as supporters say, and complaints about the lack of specificity of it makes it clear it could too easily be applied for others).

But the big underlying point — and the reason why Cole and Wittes’ claim that Barron can’t be held to account here, only the Administration whose policy he reviewed can be, is wrong — is that tautology. What the memo shows and the white paper does not is that Barron was provided evidence against Awlaki and he willingly played the role of both saying that the underlying legal logic (what we see in the white paper) was sound but that the evidence in this case (what we haven’t seen in the memo) made this departure from due process sound. Barron signed off on both the logic and the evidence justifying that logic itself.

And for me, that’s enough. That’s enough to disqualify him — no matter how liberal or brilliant he is, both qualities I’d like to see on a bench — as a judge.

That’s enough for me. But those who want to push Barron through anyway ought to consider what they would need to show to prove that Barron’s decision was reasonable: the evidence Barron saw that he believed sufficient (and unquestionable, given the absence of rebuttal) to authorize a due-process free execution. It’s unlikely we’ll ever get that evidence, because the government won’t declassify it.

That’s the problem with this nomination, one way or another. No matter how sound the underlying logic, Barron played another role in Awlaki’s execution, certifying that the evidence merited getting to the underlying logic of denying a US citizen due process. Barron both approved an entirely parallel system to replace due process, and played the judge in that system.

Update: Katherine Hawkins reminds me that when David Cole wrote about the white paper shortly after it got released, he had trouble with precisely the thing he has no trouble now.

The white paper addresses the legality of killing a US citizen “who is a senior operational leader of al-Qaeda or an associated force.” Such a person may be killed, the document concludes, if an “informed, high-level official” finds (1) that he poses “an imminent threat of violent attack against the United States;” (2) that his capture is not feasible; and (3) the operation is conducted consistent with law-of-war principles, such as the need to minimize collateral damage.  However, the paper offers no guidance as to what level of proof is necessary: does the official have to be satisfied beyond a reasonable doubt, by a preponderance of the evidence, or is reasonable suspicion sufficient? We are not told.

Nor does the paper describe what procedural safeguards are to be employed. It only tells us what is not required: having a court determine whether the criteria are in fact met.

What determines whether that standard has been met is the same OLC lawyer who determined that such a standard would be appropriate.

Days after Last American Journalist Expelled from Yemen, Ray Davis-Like Story Breaks

On Monday, the last remaining American journalist in Yemen, Adam Baron, got kicked out.

Baron’s ordeal began at midnight Monday with a phone call from a security officer ordering him to report to an immigration office the following day because of missing papers in his residency file. Fearing that he was being set up by Al Qaeda – the phone call came a day after a French guard was killed in Sanaa – Baron’s friends refused to let him go. Instead, they sent a Yemeni to check the validity of the request; he found it to be true and said Baron had to report to the authorities.

At about noon on Tuesday, Baron appeared at the immigration office, where he was promptly stripped of his passport and cellphone and was told, “You’re no longer welcome in Yemen.” He was then kept in a holding cell and was told he would remain there until his associates could bring a plane ticket for his exit.

Baron’s friends immediately began calling officials on his behalf, but the politicians and sheikhs turned out to be powerless to reverse the order. A senior military figure told Baron’s friends that the deportation was because officials were worried about his safety, an explanation they dismissed as untrue.

Baron’s reporting has served as a crucial check to a lot of the officially sanctioned journalism from Yemen, not least on the actual outcome of drone strikes.

Which is why I find it interesting that this story — of one JSOC and one CIA official killing attempted abductors in Yemen, similar to the Ray Davis episode in Pakistan  – is only breaking now, several weeks after it happened.

Exactly what the two Americans were doing at the time of the shooting on April 24 is unclear. Some American officials said they were merely getting a haircut in a barbershop on Hadda Street in Sana, in an upscale district frequently visited by foreigners, playing down any suggestions that they were engaged in a clandestine operation.

Late Friday, both the Pentagon and C.I.A. declined to comment on the shooting, and referred all questions to the State Department.

[snip]

American officials refused to identify the Americans or their jobs in Yemen, where the Pentagon and the C.I.A. have been training Yemeni security forces in addition to carrying out the drone strikes. But a senior American official said one individual involved in the shooting was a lieutenant colonel with the elite Joint Special Operations Command and the other was a C.I.A. officer.

This is precisely the kind of story on which Baron has been critical in the past. But he won’t be around to put more local context on it.

Update:  WSJ’s Ellen Knickmeyer is apparently in Yemen right now; she’s based in the Gulf. Yemen tried to deny her entry when she arrived 2 weeks ago. Here’s her account of the killing:

The Yemeni Interior Ministry officials said the Yemeni attackers approached the barber shop as one American was inside. Meanwhile, a Western-looking man standing on the sidewalk shot and killed both attackers, two Yemeni shop workers who witnessed the confrontation from an adjoining, glass-fronted store said.

“He didn’t move” from where he was standing while he pulled out a handgun and shot, said one of two Yemeni witnesses of the Westerner who fired. The second witness, in the same shop, gave a similar account.

One of the Yemeni attackers was carrying what witnesses said was a machine gun, the witnesses said. The other carried only an electric stun-gun, witnesses said.

[snip]

Shopkeepers surrounding the barbershop said Westerners took away the shop’s barber the day after the shooting. The shop remained closed in early May, when two Wall Street Journal reporters came to speak to shopkeepers at the site.

Why Should Someone Who Authorized Due Process Free Executions Be A Judge Anyway?

Yesterday, Rand Paul announced he would filibuster the nomination of First Circuit nominee David Baron until the Administration released the OLC memo authorizing the killing of Anwar al-Awlaki, as ordered by the Second Circuit last month.

As I wrote in a piece at The Week, I think this move is far more serious a political move than Paul’s earlier filibuster of John Brennan (and since you all know how I fell about Brennan, that’s saying something).

Four years ago, David Barron opened a Pandora’s box, giving presidents an inadequately limited authority to kill Americans outside all normal judicial process. As Paul notes in his letter, it would simply be “irresponsible” for the Senate to confirm his nomination without discovering what the memo could reveal about his views on due process, civil liberties, and international law. In a letter to all 100 senators, the ACLU echoed this language, recalling the precedent of Jay Bybee. “No senator can meaningfully carry out his or her constitutional obligation to provide ‘advice and consent’ on this nomination to a lifetime position as a federal appellate judge without being able to read Mr. Barron’s most important and consequential legal writing.”

The Senate took such an irresponsible step in 2003 with Jay Bybee. It can avoid that mistake here.

Apparently, I’m not alone. Senators Udall and Wyden have both said they would not vote to advance Barron’s nomination without more transparency on that memo  (and remember — they’ve seen it).

Given that makes almost enough people (the GOP plus potentially 6 Democrats under the new filibuster rules) to hold up Barron’s nomination, Obama is making yet another limited hangout, permitting Senators to go read the drone-killing memo in a SCIF.

On Tuesday, the White House offered the senators a concession. It offered all senators to a chance to look at the legal opinion. However, Obama has still not acceded to the Paul and Udall’s call for public disclosure of the memo.

“I can confirm that the administration is working to ensure that any remaining questions member of the Senate have about Mr. Barron’s legal work at the Department of Justice are addressed, including making available in a classified setting a copy of the Al-Awlaki opinion to any senator who wishes to review it, prior to Mr. Barron’s confirmation,” White House Press Seceretary Jay Carney said at a daily briefing for reporters.

“It should be noted that last year members of the Senate Judiciary Committee had access to the memo and in his committee vote Mr. Barron received unanimous Democratic support,” Carney said, referring to a January panel vote in which all Republicans opposed the nominee. “We are confident that David Barron wil be confirmed to the 1st Circuit Court of Appeals and that he will serve with distinction.”

So Senators will get to see it. But not the public (even though a court has ordered its release!).

The President of the United States, of the purported most Transparent Administration Evah™, thinks it appropriate to have the Senate vote on a lifetime appointed Circuit Court judge without the public seeing one of that nominees’ most momentous legal arguments ever.

The President thinks it appropriate to control access to information about a nominee who vastly expanded Executive Power.

And ultimately, it’s time this discussion moved to whether the opinion is itself disqualifying.

In a comment to NYT, Wyden put it this way.

Mr. Wyden added that he was also not committed to voting yes.

“Certainly the opinion would not be something I would have written. The question is: Is it disqualifying,” he said, adding that the administration should start the process of releasing the memos. “It needs to be addressed before a vote.”

Frankly, I don’t care how nice or how liberal Barron is. I feel about him like I feel about Jay Bybee. Someone who gets nominated after having rubber stamped such awful executive authorities should not be rewarded with a lifetime seat interpreting the law, because he has already been compromised.

A 2nd Amendment Right to Bear Drones

The FAA is cranky that a journalist took footage of the tornado in Arkansas the other day with a drone.

That footage, taken by storm chaser and photographer Brian Emfinger on Sunday, is now being investigated by federal aviation officials, after a local TV news channel used it as part of its disaster coverage. Mr. Emfinger, a Little Rock-based photojournalist, could be fined $10,000 if the government decides to pursue him for illegal drone-flying.

The Federal Aviation Administration (FAA) insists that such “drone journalism” isn’t legal because it breaks rules against commercial use of unmanned aircraft. Nonetheless, some drone experts say the footage of post-tornado Mayflower heralds “the dawn of the drone journalism age” – a potentially vexing frontier that pits curious citizens against a government with qualms about the spying potential of drones.

CSM uses it to lay out the tensions currently surrounding the FAA’s role, as if this is just a question of FAA’s efforts to slowly develop a legal regime for drones.

But it’s not just that. One of the examples CSM cites deals with a dispute with local cops, who thought locally controlled drone photos of an accident site might affect the site.

And while the article treats a commercial missing persons use of drones, it doesn’t consider other uses, like non-commercial monitoring of environmental sites like industrial farm CAFOs (the latter of which finally got Chuck Grassley opposed to drones because it threatens his big Ag constituents). It also doesn’t mention earlier efforts to obtain independent (whether commercial or not) surveillance of big disasters, things like the BP catastrophe.

Some of what we’re seeing is FAA’s efforts to deal with real safety and privacy and overall legal regime concerns.

But it’s also a question of who gets to wield a certain kind of vision, one currently monopolized by the state.

I’m not a fan of the proliferation of drones generally, because I think that kind of vision should be very limited. But there are also many data points out there to suggest that drones will end up being a sharply circumscribed privilege, limited to only those the state thinks should have a certain kind of vision on society.

White Paper White Wash

Partly because I want to test my kludge with some quick content while I put out 100 other fires, and partly because I want to raise some issues I’ve been mulling, I want to point to Steve Vladeck’s take on the Awlaki memo decision the other day. My piece (which I’ve reproduced below because the site is buggered) made a lot of the same points as Vladeck did about how selective disclosure brought us to this point. It’s the last paragraph of Vladeck’s post I’ve got questions about. He argues — and the government has argued in their filings in this case — that this decision will lead to less transparency.

II.  The Second Circuit’s Decision Might Therefore be Counterproductive for Transparency This leads to the most worrisome reaction I have to yesterday’s decision–that, in the long term, it will disincentivize any disclosure of secret legal rationales, lest even fairly limited disclosures empower FOIA-based arguments such as those upon which the Court of Appeals seized yesterday. In its editorial today, the New York Times suggests that the President should react to this decision by “allowing the conversation the country needs to have.” I fear it will have the opposite effect–and, when combined with the D.C. Circuit’s decision earlier this year with respect to Exemption 5, make it that much less likely that this or any future President will proactively support any disclosure of secret OLC memoranda, or even sanitized white-paper versions thereof. That’s not to say that I would have preferred the opposite result; only that the real solution, at the end of the day, will likely have to come from Congress–and not the courts.

I’m not sure disincenting this kind of false transparency is a bad thing. Think back to the days after Awlaki got killed. There was a lot of pressure, both within and outside of Congress, to release this memo. And then the NYT got a leaked nearly verbatim account of the memo (well, just the second one; it appeared to be months and months before NYT’s sources admitted there had been an earlier one!). That diminished the pressure for a time, which set back even the SSCI getting to see a copy of the memo for another year and a half. Then, weeks later, Katrhyn Ruemmler was in the White House arguing that releasing it would put the White House at a disadvantage in ACLU’s suits against it, which at that point primarily concerned this FOIA. This false transparency serves as a release valve that allows the Executive to dodge any accountability, particularly in courts. So losing it — losing the release valve that permits President after President to string out any inquiry into these gross expansions of power — would be a good thing. Note: we continue to have technical issues, so for the moment, comments have been turned off. 

Correction: The original version of this post screwed up the chronology of the release of the NYT article and Ruemmler.

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bmaz @dbaich @azcentral So, they planned a two hour long death process? Uh huh, sure. Charles Ryan just comes off as sick saying that.
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bmaz @GregoryMcNeal @WSJ Neat story, but pretty stiff ticket for the watch
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bmaz Well, @dougducey commercial cravenly and dishonestly playing on the Brian Terry killing is simply disgusting+embarrassing to AZ.
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