In a piece at MoJo, David Corn argues the Senate Intelligence Committee – CIA fight has grown into a Constitutional crisis.
What Feinstein didn’t say—but it’s surely implied—is that without effective monitoring, secret government cannot be justified in a democracy. This is indeed a defining moment. It’s a big deal for President Barack Obama, who, as is often noted in these situations, once upon a time taught constitutional law. Feinstein has ripped open a scab to reveal a deep wound that has been festering for decades. The president needs to respond in a way that demonstrates he is serious about making the system work and restoring faith in the oversight of the intelligence establishment. This is more than a spies-versus-pols DC turf battle. It is a constitutional crisis.
I absolutely agree those are the stakes. But I’m not sure the crisis stems from Feinstein “going nuclear” on the floor of the Senate today. Rather, I think whether Feinstein recognized it or not, we had already reached that crisis point, and John Brennan simply figured he had prepared adequately to face and win that crisis.
Which is why I disagree with the assessment of Feinstein’s available options as laid out by Shane Harris and John Hudson in FP.
If she chooses to play hardball, Feinstein can make the tenure of CIA Director John Brennan a living nightmare. From her perch on the intelligence committee, she could drag top spies before the panel for months on end. She could place holds on White House nominees to key agency positions. She could launch a broader investigation into the CIA’s relations with Congress and she could hit the agency where it really hurts: its pocketbook. One of the senator’s other committee assignments is the Senate Appropriations Committee, which allocates funds to Langley.
Take these suggestions one by one: Feinstein can only “drag top spies” before Congress if she is able to wield subpoena power. Not only won’t her counterpart, Saxby Chambliss (who generally sides with the CIA in this dispute) go along with that, but recent legal battles have largely gutted Congress’ subpoena power.
Feinstein can place a hold on CIA-related nominees. There’s even one before the Senate right now, CIA General Counsel nominee Caroline Krass, though Feinstein’s own committee just voted Krass out of Committee, where Feinstein could have wielded her power as Chair to bottle Krass up. In the Senate, given the new filibuster rules, Feinstein would have to get a lot of cooperation from her Democratic colleagues to impose any hold if ever she lost Senate Majority Leader Harry Reid’s support (though she seems to have that so far).
But with Krass, what’s the point? So long as Krass remains unconfirmed, Robert Eatinger — the guy who ratcheted up this fight in the first place by referring Feinstein’s staffers for criminal investigation — will remain Acting General Counsel. So in fact, Feinstein has real reason to rush the one active CIA nomination through, if only to diminish Eatinger’s relative power.
Feinstein could launch a broader investigation into the CIA’s relations with Congress. But that would again require either subpoenas (and the willingness of DOJ to enforce them, which is not at all clear she’d have) or cooperation.
Or Feinstein could cut CIA’s funding. But on Appropriations, she’ll need Barb Mikulski’s cooperation, and Mikulski has been one of the more lukewarm Democrats on this issue. (And all that’s assuming you’re only targeting CIA; as soon as you target Mikulski’s constituent agency, NSA, Maryland’s Senator would likely ditch Feinstein in a second.)
Then FP turns to DOJ’s potential role in this dispute.
The Justice Department is reportedly looking into whether the CIA inappropriately monitored congressional staff, as well as whether those staff inappropriately accessed documents that lay behind a firewall that segregated classified information that the CIA hadn’t yet cleared for release. And according to reports, the FBI has opened an investigation into committee staff who removed classified documents from the CIA facility and brought them back to the committee’s offices on Capitol Hill.
Even ignoring all the petty cover-ups DOJ engages in for intelligence agencies on a routine basis (DEA at least as much as CIA), DOJ has twice done CIA’s bidding on major scale on the torture issue in recent years. First when John Durham declined to prosecute both the torturers and Jose Rodriguez for destroying evidence of torture. And then when Pat Fitzgerald delivered John Kiriakou’s head on a platter for CIA because Kiriakou and the Gitmo detainee lawyers attempted to learn the identities of those who tortured.
There’s no reason to believe this DOJ will depart from its recent solicitous ways in covering up torture. Jim Comey admittedly might conduct an honest investigation, but he’s no longer a US Attorney and he needs someone at DOJ to actually prosecute anyone, especially if that person is a public official.
Implicitly, Feinstein and her colleagues could channel Mike Gravel and read the 6,000 page report into the Senate record. But one of CIA’s goals is to ensure that if the Report ever does come out, it has no claim to objectivity. Especially if the Democrats release the Report without the consent of Susan Collins, it will be child’s play for Brennan to spin the Report as one more version of what happened, no more valid than Jose Rodriguez’ version.
And all this assumes Democrats retain control of the Senate. That’s an uphill battle in any case. But CIA has many ways to influence events. Even assuming CIA would never encourage false flags attacks or leak compromising information about Democrats, the Agency can ratchet up the fear mongering and call Democrats weak on security. That always works and it ought to be worth a Senate seat or three.
If Democrats lose the Senate, you can be sure that newly ascendant Senate Intelligence Chair Richard Burr would be all too happy to bury the Torture Report, just for starters. Earlier today, after all, he scolded Feinstein for airing this fight.
“I personally don’t believe that anything that goes on in the intelligence committee should ever be discussed publicly,”
Burr’s a guy who has joked about waterboarding in the past. Burying the Torture Report would be just the start of things, I fear.
And then, finally, there’s the President, whose spokesperson affirmed the President’s support for his CIA Director and who doesn’t need any Democrats help to win another election. As Brennan said earlier today, Obama “is the one who can ask me to stay or to go.” And I suspect Brennan has confidence that Obama won’t do that.
Which brings me to my comment above, on AJE, that Brennan knows where the literal bodies are buried.
I meant that very, very literally.
Not only does Brennan know firsthand that JSOC attempted to kill Anwar al-Awlaki on December 24, 2009, solely on the President’s authority, before the FBI considered him to be operational. But he also knows that the evidence against Awlaki was far dodgier than it should have been before the President authorized the unilateral execution of an American citizen.
Worse still, Feinstein not only okayed that killing, either before or just as it happened. But even the SSCI dissidents Ron Wyden, Mark Udall, and Martin Heinrich declared the Awlaki killing “a legitimate use of the authority granted the President” in November.
I do think there are ways the (Legislative) Democrats might win this fight. But they’re not well situated in the least, even assuming they’re willing and able to match Brennan’s bureaucratic maneuvering.
Again, I don’t blame Feinstein for precipitating this fight. We were all already in it, and she has only now come around to it.
I just hope she and her colleagues realize how well prepared Brennan is to fight it in time to wage an adequate battle.
In accepting the Sam Adams prize, Chelsea Manning raised the ACLU/NYT lawsuits for the OLC memo authorizing the killing of Anwar al-Awlaki. (h/t Kevin Gosztola)
In doing so, she borrows an argument about separation of power and secrecy Judge Colleen McMahon made in her opinion on the FOIA.
As they gathered to draft a Constitution for their newly liberated country, the Founders – fresh from a war of independence from the rule of a King they styled a tyrant- were fearful of concentrating power in the hands of any single person or institution, and most particularly in the executive. That concern was described by James Madison in Federalist No. 47 (1788):
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny ….
The magistrate in whom the whole executive power resides cannot of himself … administer justice in person, though he has the appointment of those who do administer it.
The Framers — who were themselves susceptible to being hanged as traitors by the King of England during the Revolutionary War — were as leery of accusations of treason as they were of concentrating power in the hands of a single person or institution. As a result, the Constitution accords special protections to those accused of the most heinous of capital crimes; Article 3, Sec. 3 sets the procedural safeguard that, “No Person shall be convicted of treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
Interestingly, the Treason Clause appears in the Article of the Constitution concerning the Judiciary — not in Article 2, which defines the powers of the Executive Branch. This suggests that the Founders contemplated that traitors would be dealt with by the courts of law, not by unilateral action of the Executive. As no less a constitutional authority than Justice Antonin Scalia noted, in his dissenting opinion in Hamdi, 542 U.S. at 554, “Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime.”
The founders of America – fresh from a war of independence from King George lll – were particularly fearful of concentrating power. James Madison wrote that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”(1)
When drafting Article III of the American Constitution, the founders were rather leery of accusations of treason, and accorded special protections for those accused of such a capital offense, providing that “[n]o person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
For those of you familiar with the American Constitution, you may notice that this provision is under the Article concerning the Judiciary, Article III, and not the Legislative or Executive Articles, I and II respectively. And, historically, when the American government accuses an American of such crimes, it has prosecuted them in a federal criminal court.
After having repeated McMahon’s lesson on the checks our Founders gave Article III courts over the President, Manning described how frustrated McMahon was in not being able to release the OLC memo to ACLU and NYT.
In a recent Freedom of Information Act case(2) – a seemingly Orwellian “newspeak” name for a statute that actually exempts categories of documents from release to the public – a federal district court judge ruled against the New York Times and the American Civil Liberties Union. The Times and the ACLU argued that documents regarding the practice of “targeted killing” of American citizens, such as the radical Sunni cleric Anwar Nasser al-Aulaqi were in the public’s interest and were being withheld improperly.
The government first refused to acknowledge the existence of the documents, but later argued that their release could harm national security and were therefore exempt from disclosure. The court, however, felt constrained by the law and “conclud[ed] that the Government [had] not violated the FOIA by refusing to turn over the documents sought in the FOIA requests, and [could not] be compelled . . . to explain in detail the reasons why [the Government's] actions do not violate the Constitution and laws of the United States.”
However, the judge also wrote candidly about her frustration with her sense that the request “implicate[d] serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States,” and that the Presidential “Administration ha[d] engaged in public discussion of the legality of targeted killing, even of [American] citizens, but in cryptic and imprecise ways.” In other words, it wasn’t that she didn’t think that the public didn’t have a right to know – it was that she didn’t feel that she had the “legal” authority to compel disclosure.
Against that background, Manning notes that she was charged with treasonable offense, and wonders whether under the Awlaki precedent she could have been drone killed, just like Awlaki.
I was accused by the Executive branch, and particularly the Department of Defense, of aiding the enemy – a treasonable offense covered under Article III of the Constitution.
Granted, I received due process. I received charges, was arraigned before a military judge for trial, and eventually acquitted. But, the al-Aulaqi case raises a fundamental question: did the American government, and particularly the same President and Department, have the power to unilaterally determine my guilt of such an offense, and execute me at the will of the pilot of an Unmanned Aerial Vehicle?
She then compares (I think, though the timing on this is perhaps understandably murky) the release of both the OLC memo and follow-up speeches — and its revelation of the powers claimed by the President — with her own releases.
Until documents held by the U.S. Department of Justice’s Office of Legal Counsel were released after significant political pressure in mid-2013, I could not tell you. And, very likely, I do not believe I could speak intelligently of the Administration’s policy on “targeted killing” today either.
There is a problem with this level of secrecy, obfuscation, and classification or protective marking, in that they supposedly protect citizens of their nation; yet, it also breeds a unilateralism that the founders feared, and deliberately tried to prevent when drafting the American Constitution. Now, we have a “disposition matrix,” classified military commissions, and foreign intelligence and surveillance courts – modern Star Chamber equivalents.
I am now accepting this award, through my friend, former school peer, and former small business partner, Aaron, for the release of a video and documents that “sparked a worldwide dialogue about the importance of government accountability for human rights abuses,” it is becoming increasingly clear to me that the dangers of withholding documents, legal interpretations, and court jurisprudence from the public that pertain to the right to “life, liberty, and property” of a state’s citizens is as fundamental and important to protecting against such human rights abuses.
Of course, we still don’t know what happened to Anwar al-Awlaki; the White Paper leaves many of the key details obscure. Even as the government prepares to execute another of its citizens.
But in comparing her own releases with the government’s refusal to reveal precisely how they decided to execute an American with no due process, Manning points to where this has already gone.
And she makes a compelling case that the government’s claims of secrecy cannot be trusted.
Kimberly Dozier reports — based primarily on 4 US Officials (AKA members of Congress or their staffers) and one Senior Administration Official probably located near DOJ — that the Obama Administration is trying to decide whether to drone kill another American citizen with no due process again.
She obviously got the story because Mike Rogers wants to suggest Obama’s increased caution of late, including his decision to shift drones from CIA to DOD control — has impeded this opportunity to off an American with no due process.
And many people discussing the story suggest this case follows the example of Anwar al-Awlaki.
But it appears not to, in at least one very important respect.
According to Dozier’s description, this person is not targeting Americans in the US; he is targeting Americans overseas (given her descriptions, I’m guessing he’s targeting Americans in Afghanistan from Pakistan, though it’s possible he’s in North Africa).
An American citizen who is a member of al-Qaida is actively planning attacks against Americans overseas, U.S. officials say, and the Obama administration is wrestling with whether to kill him with a drone strike and how to do so legally under its new stricter targeting policy issued last year.
Four U.S. officials said the American suspected terrorist is in a country that refuses U.S. military action on its soil and that has proved unable to go after him. And President Barack Obama’s new policy says American suspected terrorists overseas can only be killed by the military, not the CIA, creating a policy conundrum for the White House.
Two of the officials described the man as an al-Qaida facilitator who has been directly responsible for deadly attacks against U.S. citizens overseas and who continues to plan attacks against them that would use improvised explosive devices.
But one U.S. official said the Defense Department was divided over whether the man is dangerous enough to merit the potential domestic fallout of killing an American without charging him with a crime or trying him, and the potential international fallout of such an operation in a country that has been resistant to U.S. action.
Another of the U.S. officials said the Pentagon did ultimately decide to recommend lethal action.
The officials said the suspected terrorist is well-guarded and in a fairly remote location, so any unilateral attempt by U.S. troops to capture him would be risky and even more politically explosive than a U.S. missile strike.
Say what you will about the quality of the evidence against Awlaki, they government at least claimed he was behind the UndieBomb and Toner Cartridge attacks, both targeted at American civilians in the US.
Even in the case of Kamal Derwish (whom we killed in 2002 under our prior “sitting next to a baddie” standard), we believed he was training people domestically.
By all appearances, this person is targeting US service members. And if they’re anywhere but Afghanistan (though I suspect they are in Afghanistan, especially given the reference to IEDs), they’re operating with a somewhat dubious claim to legally approved military actions.
No US citizen has the right to join the other side in a war, which (if this is Afghanistan/Pakistan) seems to be what has happened. But using a drone to target an American operating in a sovereign country we pretend not to be at war with because he is targeting military targets is a different legal case than the one against Awlaki.
Sure, Awlaki started us down a slippery slope. But we appear to have slid further down that slope.
Congratulations to Jeremy Scahill and the entire team that worked on Dirty Wars for being nominated for the Best Documentary Oscar.
This post may appear to be shamelessly opportunistic — exploiting the attention Dirty Wars will get in the days ahead to make a political point before the President endorses the dragnet on Friday — but I’ve been intending to write it since November, when I wrote this post.
Jeremy Scahill (and the entire Dirty Wars team) is the kind of person whose contacts and sources are exposed to the government in its dragnet.
To write his book (and therefore research the movie, though not all of this shows up in the movie) Scahill spoke with Anwar al-Awlaki’s father (one degree of separation from a terrorist target), a number of people with shifting loyalties in Somalia (who may or may not be targeted), and Afghans we identified as hostile in Afghanistan. All of these people might be targets of our dragnet analysis (and remember — there is a far looser dragnet of metadata collected under EO 12333, with fewer protections). Which puts Scahill, probably via multiple channels, easily within 3 degrees of separation of targets that might get him exposed to further network analysis. (Again, if these contacts show up in 12333 collection Scahill would be immediately exposed to that kind of datamining; if it shows up in the Section 215 dragnet, it would happen if his calls got dumped into the Corporate Store.) If Scahill got swept up in the dragnet on a first or second hop, it means all his other sources, including those within government (like the person depicted in the trailer above) describing problems with the war they’ve been asked to fight, might be identified too.
Scahill might avoid some of this with diligent operational security — a concerted effort to prevent the government from tracking him along with terrorists (though remember two things: one purpose of the dragnet is to discover burner phones, and his computer got hacked while he was working on this book). But the government’s intent is to sweep up records of any conversations that get as close to those hostile to American efforts as Scahill does.
One of my favorite figures in Scahill’s book was the Heineken and Johnny Walker swilling Mullah Zabara, a Yemeni tribal leader from Shabwa who expressed the ambivalence Yemenis might feel towards the US.
Several souther leaders angrily told me stories of US and Yemeni attacks in their areas that killed civilians and livestock and destroyed or damaged scores of homes. If anything, the US air strikes and support for Saleh-family-run counterterrorism units had increased tribal sympathy for al Qaeda. “Why should we fight them? Why?” Continue reading
On September 30, 2011, a drone killed Anwar al-Awlaki, a person long suspected of being a US double agent gone bad.
In 2006, the U.S. sent Ghul back to Pakistan, where he was taken into custody by the Inter-Service Intelligence agency, the country’s version ofthe CIA. The next year, the ISI quietly set him free, with the full agreement of American intelligence authorities, according to a Pakistani insider. “He was released and both parties agreed on this,” he says. “Both countries were on board in releasing him.”
The insider declined to discuss Ghul’s status as an informant. But three intelligence sources with knowledge of the issue say Ghul was one of those who agreed to cooperate and provide information about terrorists if he was released.
Yet another source says that Ghul initially agreed to the project while he was still in American custody, before he was released to the Pakistanis. “Hassan Ghul,” says one former counterterrorism official who is familiar with the case but declined to discuss it in depth, “may have been, probably, one of the highest penetrations of Al Qaeda.”
Whatever Ghul’s agreement with the Americans or Pakistanis, by the time Bin Laden was killed, it appears to have ended. One Pakistani source with knowledge of the case says that Ghul eventually “vanished” and that “the deal was rescinded.” Yet he would not say anything about exactly when after his release Ghul lost contact with the ISI.
Now, there are a number of aspects of this story that are unclear, which (if clarified) might explain this further. For example:
In any case, the report presents important new explanations and questions about Hassal Ghul.
It also makes you wonder how many of our drone strikes have been used to take out our former informants.
Former CIA Deputy Director John McLaughlin wants you to believe the NSA wasn’t really reading Anwar al-Awlaki’s communications content, on whose emails (including the web-based ones) the NSA had a full-time tap at least as early as March 16, 2008.
In my experience, NSA analysts err on the side of caution before touching any data having to do with U.S. citizens. In 2010, at the request of then-Director of National Intelligence Dennis Blair, I chaired a panel investigating the intelligence community’s failure to be aware of Umar Farouk Abdulmutallab, the “underwear bomber” who tried to blow up a commercial plane over Detroit on Dec. 25, 2009.
The overall report remains classified, but I can say that the government lost vital time because of the extraordinary care the NSA and others took in handling any data involving a “U.S. person.” (Abdulmutallab, a Nigerian, was recruited and trained by the late Anwar al-Awlaki, a U.S. citizen based in Yemen.)
And maybe that’s the case.
Except it doesn’t seem to square with the report that two FBI Agents were spending 3 hours a day each reading Awlaki’s mail. It doesn’t seem to accord with the efforts those Agents made to chase down the Nidal Hasan lead — which, after all, infringed on the privacy of two American citizens, against one of whom probable cause had not been established. You’d think it would be far easier to chase down the Abdulmutallab messages, particularly given what has been portrayed as more clearly operational content, given that Abdulmutallab would have gotten no protection as a US person.
Sure, those Agents complained about the “crushing” volume of the communications content they had to review every day, but that was a factor of volume, not any restrictions on reading FISA target Anwar al-Awlaki’s email.
Don’t get me wrong. I’m thrilled someone has raised Abdulmutallab in the context of assessing NSA’s dragnet, which I’ve been calling for since October.
UndieBomb 1.0 was the guy who was allegedly plotting out Jihad with Anwar al-Awlaki — whose communications the FBI had two guys reading – over things like chats and calls. That is, Umar Farouk Abdulmutallab was a guy whose plot the NSA and FBI should have thwarted before he got on a plane. (To say nothing of the CIA and NCTC’s fuck-ups.)
And yet, he got on that plane. His own incompetence and the quick work of passengers prevented that explosion, while a number of needles went unnoticed in the NSA’s most closely watched haystacks.
Nevertheless, the lesson DiFi takes is that we need more haystacks.
Shouldn’t the lessons of UndieBomb 1.0 be just as important to this debate as the partial, distorted, lessons of 9/11?
(I’ve also been wondering why Faisal Shahzad, who was getting instructions, including hawala notice, from known targets of drone strikes in Pakistan, before his attack, wasn’t identified by phone and Internet dragnet analysis as a person of interest through those contacts, though that may legitimately be because of turmoil in both dragnet programs.)
But for McLaughlin’s claims to be true then the description of the treatment of the Awlaki wiretaps in the Webster report on the Nidal Hasan investigation wouldn’t seem to make sense.
By all means, let’s hear what really happened back between 2008 and 2010, when the NSA missed multiple contacts with top AQAP targets and TTP targets and as a result missed two of the three main international terrorist attacks on this country since 9/11. That should be part of the debate.
But let’s be very clear whether it was really limits on US person data, when we see FBI reading content of two US persons directly, or rather the sheer volume we’re collecting (as well as the crappy computer systems FBI had in place in 2009) that caused the dragnet to fail.
Given how often fellow Michigander Juan Cole and I demonstrate what a mendacious hack Mike Rogers is…
Mike Rogers voted to give arms to the Syrian rebels. And while he may hope they don’t go to the al-Qaeda affiliates (as happened when Ronald Reagan gave $5 billion to the Afghan Mujahidin in the 1980s), he has no guarantee that won’t happen and is willing to take the risk. If Rogers were really, really concerned about the Jabhat al-Nusra, he wouldn’t be risking upping its firepower with Americans’ tax dollars as a justification for monitoring who your 15 year old daughter calls on her cell phone.
Let us say that again. Feinstein and Rogers just came on television to scaremonger the American people with the Syrian jihadis, and both of them voted to give the Syrian rebels millions of dollars in arms.
… You’d think some of the MI press might look into it.
Thankfully, Cole and I are no longer the only ones asking substantive questions about Rogers and Dianne Feinstein’s fearmongering on this Sunday’s shows. Peter Bergen has a piece that — like Cole — looks at actual numbers to challenge their claims. He relies on a New America Foundation study of Americans and residents indicted or killed over the last decade, showing that those numbers show terrorism to be going down (and be propagated by smaller, less capable groups).
But is there any real reason to think that Americans are no safer than was the case a couple of years back? Not according to a study by the New America Foundation of every militant indicted in the United States who is affiliated with al Qaeda or with a like-minded group or is motivated by al Qaeda’s ideology.
In fact, the total number of such indicted extremists has declined substantially from 33 in 2010 to nine in 2013. And the number of individuals indicted for plotting attacks within the United States, as opposed to being indicted for traveling to join a terrorist group overseas or for sending money to a foreign terrorist group, also declined from 12 in 2011 to only three in 2013.
Of course, a declining number of indictments doesn’t mean that the militant threat has disappeared. One of the militants indicted in 2013 was Dzhokhar Tsarnaev, who is one of the brothers alleged to be responsible for the Boston Marathon bombings in April. But a sharply declining number of indictments does suggest that fewer and fewer militants are targeting the United States.
Recent attack plots in the United States also do not show signs of direction from foreign terrorist organizations such as al Qaeda, but instead are conducted by individuals who are influenced by the ideology of violent jihad, usually because of what they read or watch on the Internet.
None of the 21 homegrown extremists known to have been involved in plots against the United States between 2011 and 2013 received training abroad from a terrorist organization — the kind of training that can turn an angry, young man into a deadly, well-trained, angry, young man.
Of these extremists, only Tamerlan Tsarnaev, one of the alleged Boston bombers, is known to have had any contact with militants overseas, but it is unclear to what extent, if any, these contacts played in the Boston Marathon bombings. [my emphasis]
The post got me thinking about the validity of this metric. Are the number of people indicted since 2009 a reflection of the actual threat, or that Federal officials have exhausted all the leads they’ve gotten from backdoor searches of existing COMINT collections?
Consider what one anonymous source said in the months after Anwar al-Awlaki was killed.
U.S. intelligence analysts miss the publication, too, at least to the extent that it provided a window into the thinking of al-Qaeda in the Arabian Peninsula, as the Yemen-based group is known.
“It was something that helped us gain insight into the group,” said a U.S. defense official involved in tracking AQAP, who spoke on the condition of anonymity. The publication’s apparent demise is “an intelligence loss for us,” the official said.
Yet Inspire probably wasn’t just a window onto AQAP’s thinking (if it really was that). Particularly given the indications NSA had some access to its code (if I were NSA I would have attached some kind of flag to the code used to decrypt the document, and I would also search on that code in upstream collection), I would assume Inspire was a major source of leads. So did killing Awlaki and Samir Khan simply make it harder for US officials to find Muslims to trap in stings over time?
NAF’s data is inconclusive on this point. Continue reading
As part of a letter asking the Administration to provide more details on its drone and/or targeting killing program, Senators Wyden, Udall, and Heinrich have judged the killing of Anwar al-Awlaki to be “a legitimate use of the authority granted the President.” (Adam Serwer first reported on this letter here). That judgement — as well as the Senators’ further comments on Awlaki — may provide further hints about the killing. Here’s the full paragraph:
Having carefully reviewed the matter, we believe that the decision to use lethal force against Anwar al-Aulaqi was a legitimate use of the authority granted to the President. As the President noted in his May 2013 speech at the National Defense University, Mr. al-Aulaqi clearly made a conscious decision to join an organized fighting force that was (and is) engaged in planning and carrying out attacks against the United States, including the 2009 Christmas Day bombing and the 2010 cargo plane plot. By taking on a leadership role in this organization, involving himself in ongoing operational planning against the United States, and demonstrating the capacity and intent to carry out these operations, he made himself a legitimate target for military action. Additionally, while the US government did not publicly acknowledge that it was attempting to kill Mr. al-Aulaqi, this fact was nonetheless widely reported in US and international media. This disclosure served as the equivalent of a wanted poster, and if Mr. al-Aulaqi had been a wrongly targeted innocent man he could have turned himself in and cleared his name. Additionally, alternative reasonable means to apprehend Mr. al-Aulaqi or otherwise deal with the threat that he posed do not appear to have been available. Finally, based on what we have been told, lethal force appears to have been used against Mr. al-Aulaqi in a manner consistent with applicable international law. [my emphasis]
Recall that for a full year, Ron Wyden kept asking whether, “the President’s authority to kill Americans [is] based on authorization from Congress or his own authority as Commander-in-Chief?” Once he saw the Awlaki memos in February, he stopped asking.
And while this paragraph doesn’t definitively answer that question, it does suggest an answer. This letter describes the President acting under authority “granted” to him, rather than inherent to the position. It describes Awlaki as having been the target of “military action.” And it concludes that, if everything they’ve been told is correct, the killing was “consistent with applicable international law.” All three of those details make it more likely the government operated under an AUMF justification than an Article II one. It also suggests that the military person pressed the actual button to kill Awlaki, given that there’s little way a CIA officer doing so would have been legal (and if that’s correct, then it means John Brennan has not made a single change to the drone program).
All that said, later in the letter, the Senators write,
We also believe the Executive Branch needs to clarify whether all lethal counterterrorism operations to date have been carried out pursuant to the 2001 Authorization to Use Military Force, or whether any have been based solely on the President’s own authorities.
So even while they suggest Awlaki’s killing was authorized under the AUMF, they still profess ignorance about whether all targeted killings have been. Also note they’re asking about “lethal counterterrorism operations,” not drone killing.
As if on cue in response to my post noting that while the NSA may not be like the Stasi for most Americans, it may well be closer for Muslims, Glenn Greenwald teams up with HuffPo’s two Ryans to disclose that the NSA has been snooping on online porn habits.
The National Security Agency has been gathering records of online sexual activity and evidence of visits to pornographic websites as part of a proposed plan to harm the reputations of those whom the agency believes are radicalizing others through incendiary speeches, according to a top-secret NSA document.
Beyond the eye-popping lede, however, I find the underlying premise just as troubling.
The NSA calls the 6 targets it describes as “radicalizers.”
DNI flack Shawn Turner suggests these are valid terrorist targets.
“Without discussing specific individuals, it should not be surprising that the US Government uses all of the lawful tools at our disposal to impede the efforts of valid terrorist targets who seek to harm the nation and radicalize others to violence,” Shawn Turner, director of public affairs for National Intelligence, told The Huffington Post in an email Tuesday.
Former NSA GC Stewart Baker characterizes them as “trying to recruit folks to kill Americans.”
“If people are engaged in trying to recruit folks to kill Americans and we can discredit them, we ought to,” said Baker. “On the whole, it’s fairer and maybe more humane” than bombing a target, he said, describing the tactic as “dropping the truth on them.”
But consider the profile presented in the story and underlying documents. None have been tied to any terrorist plots.
None of the six individuals targeted by the NSA is accused in the document of being involved in terror plots.
The English speaking ones have minimal ties with people characterized even as extremist groups (which may be different than a terrorist group; and the Arab speakers do have such ties).
The NSA accuses two of the targets of promoting al Qaeda propaganda, but states that surveillance of the three English-speakers’ communications revealed that they have “minimal terrorist contacts.”
In particular, “only seven (1 percent) of the contacts in the study of the three English-speaking radicalizers were characterized in SIGINT as affiliated with an extremist group or a Pakistani militant group. An earlier communications profile of [one of the targets] reveals that 3 of the 213 distinct individuals he was in contact with between 4 August and 2 November 2010 were known or suspected of being associated with terrorism,” the document reads.
And the messages these so-called “radicalizers” promote range from 9/11 trutherism to intolerance for non-Sunni Muslims to justifying the killing of non-Muslim invaders.
One target’s offending argument is that “Non-Muslims are a threat to Islam,” and a vulnerability listed against him is “online promiscuity.” Another target, a foreign citizen the NSA describes as a “respected academic,” holds the offending view that “offensive jihad is justified,” and his vulnerabilities are listed as “online promiscuity” and “publishes articles without checking facts.” A third targeted radical is described as a “well-known media celebrity” based in the Middle East who argues that “the U.S perpetrated the 9/11 attack.” Under vulnerabilities, he is said to lead “a glamorous lifestyle.” A fourth target, who argues that “the U.S. brought the 9/11 attacks on itself” is said to be vulnerable to accusations of “deceitful use of funds.”
And that well-known cleric who opposes Al Qaeda’s targeting of civilians and approves killing invaders of his country even adopts a pragmatic approach to the Arab Spring — which is more than our Saudi allies can say.
While some of these 6 targets may count as extremist propagandists, several of them, at least, might better be described as outspoken opponents to unfettered American dominance.
And the NSA proposes not just to discredit these people with smut (a tactic they attempted to use, unsuccessfully, against Anwar al-Awlaki), but to accuse them of — gasp! — charging exorbitant speaking fees.
So, yeah, this does prove that the NSA is using its considerable resources to repeat J Edgar Hoover’s tactics.
But it also shows that it is deploying such efforts against men who may not be the bogeymen NSA’s apologists make them out to be.
Update: Juan Cole takes the same angle on this story I did.
Update: DNI flack’s name corrected, thanks to SA.
Technically, I suppose, Erik Prince’s latest disclosure (unlike some earlier ones) is not gray mail, as he seems intent (as Jeff Stein reported months ago) to exact revenge no matter what and claims the CIA has already done whatever damage it can to him.
Which makes me wonder whom he’s trying to exact revenge on with his claim that Abdulrahman al-Awlaki was deliberately targeted (a claim Jeremy Scahill reported back in April, though sourced it to a former Senior Administration Official).
“I am all in favor of killing terrorists,” Prince said. “But the fact that [Anwar] al-Awlaki was killed and his 16-year-old son, born in Colorado, was killed with no due process other than that he got on the ‘kill list’ is troubling to me.” The Obama administration has claimed that Awlaki, an American citizen who was killed in a drone strike in 2011, was an operational leader of al Qaeda’s affiliate in Yemen.
Prince said he believes al-Awlaki’s son was deliberately targeted in a second strike after the one that killed Awlaki. The Obama administration has said that strike was not targeting Awlaki’s son, but someone else.
Prince also said the over-reliance on drone warfare in the Middle East and South Asia would likely reap “a bitter harvest,” because of the scale of collateral damage from drone strikes. He said it was wiser to send in small teams to such denied areas to find and target terrorists, or outsource this kind of work to local surrogates.
In the other day’s installment of Erik Prince’s complaints, after all, he blamed his plight on Leon Panetta, who cut off his assassination training program and pulled some drone targeting activities away from Blackwater, reportedly in 2009. Panetta was Secretary of Defense at the time Abdulrahman was killed, having moved over from running CIA and its drone assassination months earlier. David Petraeus had his button on CIA’s drone killing machine by the time of Anwar and Adbulrahman’s deaths.
That said, there were reports JSOC targeted Abdulrahman…