Posts

The Minh Quang Pham Precedent to the Julian Assange Extradition

WikiLeaks supporters say that extradition of Julian Assange to the United States threatens journalism. That is true.

They also say that his extradition would be unprecedented. I believe that’s true too, with respect to the Espionage Act.

But it’s not entirely without precedent. I believe the case of Minh Quang Pham, who was extradited to the US in 2015 for activities related to AQAP — the most substantive of which involve providing his graphic design expertise for two releases of AQAP’s magazine, Inspire — provides a precedent that might crystalize some of the legal issues at play.

The Minh Quang Pham case

Minh Quang Pham was born in 1983 in Vietnam. He and his parents emigrated to the UK in 1989 and got asylum. In 1995, he got UK citizenship. He partied a lot, at a young age, until his conversion to Islam in 2004, after which he was drawn to further Islamic study and ultimately to Anwar al-Awlaki’s propaganda. Pham was married in 2010 but then, at the end of that year, traveled to Yemen. After some delays, he connected with AQAP and swore bayat in early 2011. While he claimed not to engage in serious training, testimony from high level AQAP/al-Shabaab operative Ahmed Warsame, who — after a two month interrogation by non-law enforcement personnel on a ship — got witness protection for himself and his family in exchange for cooperation, described seeing Pham holding a gun, forming one basis for his firearms and terrorist training charges (though the government also relied on a photo taken with Pham’s own camera).

On my arrival, Amin had a Kalashnikov with him and a pouch of ammunition. I am not certain if he had purchased the gun himself but he did say he had been trained by Abu Anais TAIS on how to use it, I can say from my knowledge of firearms that this weapon was capable of automatic and single fire.

Warsame’s role as informant not only raised questions about the proportionality of US treatment (he was a leader of al-Shabaab, and yet may get witness protection), but also whether his 2-month floating interrogation met European human rights standards for interrogation.

Pham reportedly sucked at anything military, and by all descriptions, the bulk of what Pham did in Yemen involved helping Samir Khan produce Inspire. After some time and a falling out with Khan — and after telling Anwar al-Awlaki he would accept a mission to bomb Heathrow — he returned to the UK. He was interrogated in Bahrain and at the airport on return, and again on arrival back home, then lived in London for six months before his arrest. At first, then-Home Secretary Theresa May tried to strip him of his UK citizenship in a secret proceeding so he could be deported (and possibly drone killed like other UK immigrants), but since — as a refugee — he no longer had Vietnamese citizenship, her first attempt failed.

The moment it became clear the British effort to strip him of citizenship would fail, the US indicted Pham in SDNY on Material Support (covering the graphic design work), training with a foreign terrorist organization, and carrying a firearm. Even before he ultimately did get stripped of his citizenship, he was flown to the US, in February 2015. The FBI questioned him, with no lawyer, during four days of interviews that were not recorded (in spite of a recently instituted FBI requirement that all custodial interviews be recorded). On day four, he admitted that Anwar al-Awlaki had ordered him to conduct an attack on Heathrow (which made the 302), but claimed he had made it clear he only did so as an excuse to be able to leave and return to the UK (a claim that didn’t make the 302; here’s Pham’s own statement which claims he didn’t want to carry out an attack). While Pham willingly pled guilty to the training and arms charges, at sentencing, the government and defense disputed whether Pham really planned to conduct a terrorist attack in the UK, or whether he had — as he claimed — renounced AQAP and resumed normal life with his wife. He failed to convince the judge and got a 40 year sentence.

The question of whether Pham really did plan to attack Heathrow may all be aired publicly given that — after Pham tried to get a recent SCOTUS case on weapon possession enhancements applied to his case — the government has stated that it wants to try Pham on the original charges along with one for the terrorist attack they claim Pham planned based on subsequently collected evidence.

The parallels between the Assange and Pham cases

Let me be clear: I’m not saying that Assange is a terrorist (though if the US government tries him, they will write at length describing about the damage he did, and it’ll amount to more than Pham did). I’m arguing, however, that the US has already gotten extradition of someone who, at the time of his extradition, claimed to have injured the US primarily through his media skills (and claimed to have subsequently recanted his commitment to AQAP).

Consider the similarities:

  • Both legal accusations involve suspect informants (Ahmad Warsame in Pham’s case, and Siggi and Sabu in Assange’s)
  • Both Pham and Assange were charged for speech — publishing Inspire and publishing the names of US and Coalition informants — that is more explicitly prohibited in the UK than the US
  • Both got charged with a substantive crime — terrorism training and possession of a gun in the case of Pham, and hacking in the case of Assange — in addition to speech-based crimes, charges that would (and did, in Pham’s case) greatly enhance any sentence on the speech-related charges
  • Pham got sentenced and Assange faces a sentence and imprisonment in SuperMax in the US that is far more draconian than a sentence for the same crimes would be in the UK, which is probably a big part of the shared Anglo-American interest in extraditing them from the UK
  • Whatever you think about the irregularity and undue secrecy of the Assange extradition, Pham’s extradition was far worse, particularly considering the way Theresa May was treating his UK citizenship

Unlike the Pham charges — all premised on Pham’s willing ties to a Foreign Terrorist Organization, AQAP — the US government has not included allegations that it believes Julian Assange conspired with Russia, though prosecutors involved in his case trying unsuccessfully to coerce Jeremy Hammond’s testimony reportedly told Hammond they believe him to be a Russian spy, and multiple other reports describe that the government changed its understanding of WikiLeaks as it investigated the 2016 election interference (and, probably, the Vault 7 release). Even if it’s true and even if they plan to air the basis for their belief, that’s a claimed intelligence tie, not a terrorism one.

This distinction is important. Holder v. Humanitarian Law clearly criminalizes First Amendment protected activity if done in service of a designated Foreign Terrorist Organization, so Pham’s graphic design by itself made him fair game for charges under US precedent.

The government may be moving to make a similar exception for foreign intelligence assets. As the Congressional Research Service notes, if the government believes Assange to be a Foreign Agent of Russia, it may mean the Attorney General (Jeff Sessions for the original charge, and Bill Barr for all the indictments) deemed guidelines prohibiting the arrest of members of the media not to apply.

The news media policy also provides that it does not apply when there are reasonable grounds to believe that a person is a foreign power, agent of a foreign power, or is aiding, abetting, or conspiring in illegal activities with a foreign power or its agent. The U.S. Intelligence Community’s assessment that Russian state-controlled actors coordinated with Wikileaks in 2016 may have implicated this exclusion and other portions of the news media policy, although that conduct occurred years after the events for which Assange was indicted. The fact that Ecuador conferred diplomatic status on Assange, and that this diplomatic status was in place at the time DOJ filed its criminal complaint, may also have been relevant. Finally, even if the Attorney General concluded that the news media policy applied to Assange, the Attorney General may have decided that intervening events since the end of the Obama Administration shifted the balance of interests to favor prosecution. Whether the Attorney General or DOJ will publicly describe the impact of the news media policy is unclear.

There’s a filing from the prosecutor in the case, Gordon Kromberg, that seems to address the First Amendment in more aggressive terms than Mike Pompeo’s previous statement on the topic.But it may rely, as the terrorism precedent does, on a national security exception (one even more dangerous given the absence of any State Department FTO list, but that hardly makes a difference for a foreigner like Pham).

Ultimately, though, the Assange extradition, like the Pham prosecution, is an instance where the UK is willing to let the US serve as its willing life imprisoner to take immigrants to the UK off its hands. Assange’s extradition builds off past practice, and Pham’s case is a directly relevant precedent.

The human rights case for Julian Assange comes at an awkward time

While human rights lawyers fought hard, at times under a strict gag, on Pham’s immigration case, Assange’s extradition has focused more public attention to UK’s willingness to serve up people to America’s draconian judicial system.

Last Thursday, Paul Arnell wrote a thoughtful piece about the challenge Assange will face to beat this extradition request, concluding that Assange’s extradition might (or might have, in different times) demonstrate that UK extradition law has traded subverted cooperation to a defendant’s protection too far.

We need to reappraise the balance between the conflicting functions of UK extradition law.

Among the UK’s most powerful weapons are its adherence to the rule of law, democracy and human rights. Assange’s extradition arguably challenges those fundamental principles. His case could well add to the evidence that the co-operative versus protective pendulum has swung too far.

He describes how legal challenges probably won’t work, but an appeal to human rights might.

British extradition law presumptively favours rendition. Extradition treaties are concluded to address transnational criminality. They provide that transfer will occur unless certain requirements are met. The co-operative purpose of extradition more often than not trumps the protection of the requested person.

The protective purpose of extradition is served by grounds that bar a request if they are satisfied. Those particularly applicable in Assange’s case are double criminality, human rights and oppression.

There are several offenses within the Official Secrets Acts 1911/1989 and the Computer Misuse Act 1990 that seemingly correspond to those in the US request. However, human rights arguments offer Assange hope.

Three are relevant: to be free from inhuman and degrading punishment, fair trial rights and freedom of expression. Previous decisions have held that life-terms in supermaximum-security prisons do not contravene the “punishment” provision, while the right to freedom of expression as a bar to extradition is untested.

Assange’s best prospect is possibly the oppression bar. Under it, a request can be refused on grounds of mental or physical health and the passage of time. To be satisfied, however, grievous ill health or an extraordinary delay are required.

It’s a good point, and maybe should have been raised after some of the terrorism extraditions, like Pham’s. But it may be outdated.

As I noted, Arnell’s column, titled, “Assange’s extradition would undermine the rule of law,” came out on Thursday. Throughout the same week that he made those very thoughtful points, of course, the UK publicly disavowed the rule of law generally and international law specifically in Boris Johnson’s latest effort to find a way to implement Brexit with no limits on how the UK deals with Northern Ireland.

The highlight – something so extraordinary and constitutionally spectacular that its implications are still sinking in – was a cabinet minister telling the House of Commons that the government of the United Kingdom was deliberately intending to break the law.

This was not a slip of the tongue.

Nor was it a rattle of a sabre, some insincere appeal to some political or media constituency.

No: law-breaking was now a considered government policy.

[snip]

[T]he government published a Bill which explicitly provides for a power for ministers to make regulations that would breach international and domestic law.

[snip]

Draft legislation also does not appear from nowhere, and a published Bill is itself the result of a detailed and lengthy internal process, before it is ever presented to Parliament.

This proposal has been a long time in the making.

We all only got to know about it this week.

[snip]

No other country will take the United Kingdom seriously in any international agreements again.

No other country will care if the United Kingdom ever avers that international laws are breached.

One of the new disclosures in a bunch of Roger Stone warrants released earlier this year is that, in one of the first Dms between the persona Guccifer 2.0, the WikiLeaks Twitter account explained, “we’ve been busy celebrating Brexit.” That same Brexit makes any bid for a human rights argument agains extradition outdated.

Twenty Years of Continuity

Last night, the US killed Qassem Suleimani in a targeted killing on Iraqi soil. DOD claimed they killed him in a “defensive” move to stop his plotting against US diplomats. Nancy Pelosi already made clear that Trump did not properly brief Congress (though Lindsey Graham says he got briefed while golfing at Mar a Lago).

Most experts fear this will escalate (indeed, recent events resemble a Colin Kahl think piece about how the US and Iran could escalate into a war without meaning to).  That’d be bad enough under a sane president, with competent advisors. But Trump has fired most of the experts in his White House and has been pardoning war criminals (and is thinking of pardoning more). Which means we may well be mobilizing service members to fight for a Commander in Chief they can’t expect to think through the use of force, but who has already demanded that his subordinates violate norms and laws partly because he has a temper problem and partly because he doesn’t understand how slow negotiation and strategy works.

But I also feel like this moment has been coming for twenty years, enabled by people who disdain Trump but nevertheless get treated as sane.

There’s our response to 9/11, which people on both sides of the aisles believed was license to break all the rules the US had claimed to adhere to since World War II. We embraced torture because some of the most experienced policy makers ever claimed to be at a loss to know how to respond to a threat they had been warned about. Yet those policy makers knew how to work the system, to have in-house lawyers write up OLC memos excusing the crimes in advance.

Then there’s the Iraq War, the forever stain. Those same experienced policy makers used the opportunity of 9/11 to launch a war of a choice, and then bungle it, in part out of the same impatience and imperiousness policy elites now criticize Trump for, in part by putting incompetent ideologues in charge of cleaning up the mess.

Along the way, we used tools meant to fight terrorism as a way to villainize Iran, in part because the Neocons wanted to avoid political negotiation with Iran at all costs and in part because figuring out a way to deal with Iran’s willingness to use proxies was too difficult otherwise.

It didn’t really get better with Obama. When faced with the challenge of an American citizen inciting attacks, Anwar al-Awlaki, he carried out a sustained effort to kill him using the same kind of targeted kill that Trump just used, excused by yet more shoddy OLC memos.

It seemed so easy, he did it again to take out Osama bin Laden, in a made-for-campaign-season strike that didn’t do much to address terrorism but did expand our claims to operate on other countries’ sovereign territory.

Then there was Libya, where the US made certain agreements to limit the action against Qaddafi, only to violate them and leave the country in chaos.

The Republicans’ cynical sustained response to Benghazi, yet another made-for-campaign-season event, made it their party line stance that any attack on the US must be met by a show of dick-wagging and force, regardless of the efficacy. Trump even made that stance a key part of his nominating convention. Benghazi-palooza made a response like yesterday’s targeted killing inevitable, even though a bunch of the same Republicans recognize that Trump doesn’t understand the fire he’s playing with.

Behind it all is a belief that the most powerful nation in the world shouldn’t have to tolerate any resistance to its power, and may break rules and norms — to say nothing of causing untold chaos in other places — to quash it. Purportedly sane mainstream politicians set the precedent that it was okay to commit war crimes as a misguided shortcut in defending America. A Nobel Prize winner normalized assassination. And both parties have enabled events and legal arguments that leave Trump with few restraints.

And yet the chattering classes will pretend this is something new with Trump.

Trump Refuses to Keep This Country Safe from Terrorism

I thought a lot about two things over the weekend.

I thought about the line that disqualifies an otherwise excellent book on left wing terrorism in the 1970s, Days of Rage: “With the possible exception of the Ku Klux Klan,” author Bryan Burrough claimed close to the beginning of the book, “the United States until 1970 had never spawned any kind of true underground movement committed to terrorist acts.” The book, which spends a lot of time talking about left wing political violence in significant part stemmed out of a concern for the rights of African Americans, utterly dismissed (perhaps because it was so widely accepted it could barely be called “underground”?) America’s most persistent terrorist movement as such. The line has haunted me ever since as an example of the kind of blindness even experts have about the centrality of right wing terrorism in American history.

I thought, too, about Charlie Savage’s description in Power Wars of how Scott Brown’s team claimed that his polling showed he won the 2010 special election to replace Ted Kennedy chiefly because of perceptions of how Obama responded to Umar Farouk Abdulmutallab’s failed Christmas Eve bombing, because Brown attacked Obama for wanting to give terrorists due process. Once Republicans learned that, they doubled down, encouraging voters to become more afraid.

In a question-and-answer period following his prepared remarks, [Mitch] McConnell candidly acknowledged the political advantage of hammering away at the issue, citing Brown’s victory.

“If this approach of putting these people in U.S. courts doesn’t play in Massachusetts, I don’t know where it sells,” McConnell said, adding: “You can campaign on these issues anywhere in America.”

As Savage describes, that was when Obama started caving on his efforts to adopt a more reasonable approach to terrorism, first reversing Eric Holder’s decision to try the 9/11 defendants in NYC, then launching an 18-month campaign to drone kill Anwar al-Awlaki, and ultimately failing to close Gitmo or hold torturers to account.

Now, as Savage tells it, all that arose solely out of the Abdulmutallab case. He barely covered an event that preceded it, one where Republicans very much set up the Brown lines: when Pete Hoekstra leaked information obtained via FISA collection showing that Nidal Hasan had had communications with Awlaki before his attack on Fort Hood, using it to suggest the Obama Administration should have prevented the Fort Hood attack by adequately analyzing collected communications. Republican efforts to exact a cost from Obama for a more reasonable approach to terrorism (which included demanding that Obama call Hasan’s attack on a military target, terrorism) actually preceded the Abdulmutallab attack, and it was far more deliberate than made out.

The point is, though, that it had the short term desired effect of breaking the Democratic super majority in the Senate and the longer term effect of making Obama reactive on terrorism, rather than proactive (even through the time, in 2013, when Massachusetts was successfully attacked at the Boston Marathon and polls showed people actually didn’t want any more limits on civil liberties). Republicans deliberately and successfully forced a president who wanted to be something other than a War on Terror President to instead be just that.

And now, 8 years after Mitch McConnell gleefully said Republicans should run on hard nose accountability for terrorist attacks everywhere, Republicans are whining that Democrats are treating Trump’s actions in advance of and in the wake of serial right wing terrorist attacks last week as a political issue.

In the wake of last week’s terrorist attacks, we have returned to a discussion we always have after such things, why we call Islamic terrorism terror, but call the targeting of black churches and Jewish synagogues hate crimes and the attempted assassination of Democratic figures bomb attacks. Popehat wrote a worthy lawsplainer, from the viewpoint of a former prosecutor, why domestic terrorists don’t get (immediately) labeled as terrorist attacks. 9/11 Commission staffer Daniel Byman acknowledged that while we don’t have the same legal structure for pursuing domestic terrorist as we do terrorism with a foreign nexus, for the Pittsburgh case, at least, we should probably use the T-word.

I’ve talked about why it is important to call domestic terrorism terrorism here: First, because not doing so results in an equal protection problem, where Muslims are more likely to be targeted in a sting because the FBI has greater access to the communications of still-innocent people with suspect people overseas. And, because calling something terrorism conceives of the possibility of a supporting network, and investigating that network might prevent deaths, such as those perpetrated by the networks of Eric Rudolph or Kevin Harpham.

But the government may not call these acts terrorism. That’s true, in part, because DOJ has invented a separate category to criminalize (impose the death penalty on) hateful motives with hate crimes designation. In addition, Jeff Sessions’ DOJ has adopted a deliberate policy of record-keeping to try to claim that the greatest threats come from outside the country, which is paralleled by their thus far unsuccessful attempt to brand the (US-born) MS-13 gang both as a threat sourced from Central American and as a threat to rival ISIS.

Trump’s effort to brand a group of refugees 1,000 miles from the border as a more urgent threat to the country than corruption or climate change or domestic gun violence — an effort which likely had a tie to both Cesar Sayoc’s terrorist attempt and Robert Bowers’ mass killing — is more of the same, an effort to claim that the most critical threats are foreign and anything he deems a threat is therefore un-American, also foreign.

Ultimately, the reason why the government won’t call last week’s attacks terrorism, however, is precisely the reason they should. Call them terror attacks, and the networks of support and enablers get investigated rather than just isolated men treated as lone wolves. Call them terror attacks, and we start to ask what responsibility Lou Dobbs or Steve King or Chris Farrell (or the people who vote for and fund them) — or Donald Trump — have for the attacks, in the same way we held Anwar al-Awlaki responsible for his role in the terrorist attacks that Scott Brown exploited to get elected.

Byman describes correctly how contentious this can be, because those espousing the same policies as terrorists don’t want to be associated with those terrorist acts.

[D]omestic terrorism often has a bigger political impact than jihadi violence. A foreign-based attack brings America together in the face of tragedy. But right-wing (and left-wing) violence is more likely to divide the country. Just this week, for example, 56-year-old Cesar Sayoc reportedly sent explosive packages to CNN, Democratic politicians, and others seen as “enemies” of Trump. Some right-wing voices immediately embraced conspiracy theories rather than recognizing his activities for what it was. Domestic terrorists poke at bigger political wounds than do jihadis, with at least some Americans sympathizing with their cause even as they reject their violent means.

In turn, observers often avoid the word “terrorism” because peaceful proponents of right-wing and left-wing causes don’t want to be lumped together, even by weak association, with terrorists. We can and should recognize that most political groups of all stripes abhor violence. Doing so—while also acknowledging that the groups and individuals who don’t belong in a separate category—will better enable the United States to isolate extremists and cut them off before the next tragedy.

Which is why this post bears the headline, “Trump refuses to keep this country safe from terrorism” rather than Trump fosters terrorism, even if I believe the latter to be the case.

Because until the time those willing to coddle Trump’s racism in the name of tribal loyalty are defeated politically, they will want to pitch questions about what to label Cesar Sayoc and Robert Bowers’ actions as an attack on themselves.

Instead, let’s make it an attack on Donald Trump’s basic competence as President, one the Republicans themselves, from top to bottom, have embraced.

It is the Republican party of Karl Rove and Mitch McConnell and Scott Brown and (Trump Ambassador to the Netherlands) Pete Hoekstra that says a President who won’t keep the country safe from terrorism must be defeated politically. Me, I’d rather deal with all this domestic terrorism by first closely tracking those accused of domestic violence (which would have the effect of preventing non-ideological mass killings along with the ideological mass killings and attempts) and by noting that under George W Bush and Obama, the FBI was actually pretty good at discovering right wing terrorism without the tools they have against Islamic terrorism. I’d rather Democrats run on the fear of losing health insurance or the impact of climate change or gun violence generally.

But not Republicans. Republicans believe that a President who refuses to take a very aggressive approach to terrorism should not be President. So for those Republicans, let’s make this an issue not of the ways Trump’s network fostered actions like we saw last week, but how Trump’s Administration has chosen not to combat terrorism.

Christopher Wray Was Doing Great Until He Accused Chad of Spewing Jihadist Propaganda

In his first House Judiciary Committee oversight hearing today, FBI Director Christopher Wray responded to questions about FBI Agent Peter Strzok by explaining there was an ongoing Inspector General investigation into Strzok’s role in the investigation into Hillary’s treatment of classified information more times (at least 16) than he dodged answers in his confirmation hearing (11).

At that level, it was a typical HJC hearing, as each side spent more time pitching their partisan spin (with Democrats asking a string of questions Wray was unable to answer about Russia) rather than — with a few exceptions — conducting much oversight.

That said, I really appreciated two aspects of Wray’s testimony today. First, with the very notable exception of FISA matters (specifically, any FISA applications tied to Trump’s associates, and whether they derived in any way from the Steele dossier), Wray seemed genuinely willing to accept HJC’s mandate to conduct oversight.

As I’ve already noted, I get that HJC can be full of partisan hacks. But it is also the case that the Executive branch, particularly something as powerful as the FBI, must be subject to the oversight requests of Congress. And under both the Bush and Obama Administrations, FBI and DOJ largely treated their oversight committees with (sometimes deserved, but often undeserved) contempt. Even where Wray was bullshitting members of Congress, such as when he pretended that moving Strzok to human resources wasn’t a demotion, he at least appeared to treat their inquiries with respect.

Perhaps, if it is treated with respect it sometimes doesn’t deserve, HJC will come to become the committee FBI and DOJ need as an oversight body.

The other thing I appreciated — particularly in the wake of Jim Comey’s treatment of everything as a fight between “good guys” and “bad guys” — was Wray’s repeated invocation of the humanness of FBI and its officials. For example, in what must have been a rehearsed response to a question about the reputation of the FBI, Wray said, “Do we make mistakes? You bet we make mistakes. Just like everyone who is human makes mistakes,” before describing how the IG (which is currently investigating Strzok) provides the opportunity to “hold our folks accountable, if that’s appropriate.” Somewhat less convincingly, in response to a question from Cedric Richmond, who cleverly noted that the FBI Headquarters is still named after the architect of COINTELPRO, J Edgar Hoover, Wray again stressed the humanity of FBI. “It’s something we’re not proud of but it is also something we’ve learned from … We’re human, we make mistakes. We have things that we’ve done well. We’ve had things we done badly, and when we’ve done badly we try to learn from them.”

Given FBI’s intransigence on back door searches and Wray’s own evolving understanding of the problems caused by the designation Black Identity Extremist (not to mention what appears to be undeserved self-congratulation about how many — or rather few — open investigation into white supremacist terrorists the FBI has) I’m not convinced the FBI really has learned those lessons. It is still too white and too male of an organization to understand how much it polices some of the same things COINTELPRO did, and with even more intrusive tools.

But I am heartened that the FBI Director, perhaps largely because of the focus on Strzok, publicly recognized that FBI is not always the good guy, contrary to what Comey internalized and evangelized over and over. In discussions with Karen Bass about the BIE designation, too, it sounded like he was at least able to listen, even if he refused to withdraw the intelligence report that created the designation.

That said, Wray made several outright errors that need to be corrected.

The first two, both about Section 702, came in response to questions by Ted Poe (who was one of just a few people to raise Section 702, in spite of the fact that I’ve heard from numerous staffers they can’t get answers about key aspects of how 702 works). First, addressing Poe’s claim that back door searches are abusive, Wray claimed that courts that had considered the querying had found it to be consistent with the Fourth Amendment.

Every court, every  court, to have looked at the way in which Section 702 is handled, including the querying, has concluded that it’s being done consistent with the Fourth Amendment.

As the EFF laid out, that’s not actually true. The Ninth Circuit punted on precisely the issue of back door searches.

When Wray mentions the Ninth Circuit, he is likely referencing a 2016 decision by the U.S. Court of Appeals for the Ninth Circuit. In the opinion for USA v. Mohamed Osman Mohamud, the appeals court ruled that, based on the very specific evidence of the lawsuit, data collected under Section 702 did not violate a U.S. person’s Fourth Amendment rights. But the judge explicitly wrote that this lawsuit did not involve some of the more “complex statutory and constitutional issues” potentially raised by Section 702.

Notably, the judge wrote that the Mohamud case did not involve “the retention and querying of incidentally collected communications.” That’s exactly what we mean when we talk about “backdoor searches.”

Wray is mischaracterizing the court’s opinion. He is wrong.

In addition, Wray claimed that,

The individuals that are incidentally collected — the US person information that is incidentally collected — are people that are in communication with foreigners who are the subject of foreign intelligence investigations, so like an ISIS recruiter, there’s a US person picked up, that person would have been in email contact, for example, with an ISIS recruiter.

While I’m not certain precisely what gets dumped into the FBI database that is queried, it is false to claim that every US person who has information collected would necessarily have been in communication with the target. That’s because PRISM providers are cloud storage providers and NSA gets anything a target stores and then some, and because people email very interesting stuff to each other all the time. That means there’s a whole bunch of other things that might implicate US persons swept up in the PRISM collection that gets shared, in raw form, with the FBI.

I wanted to point to an assumption virtually everyone has been making about PRISM collection and its suitability for back door searches that may not be valid. If you think about the hack-and-leak dumps in recent years, for example, often the most damaging, as well as the most ridiculous infringements on privacy, involve email attachments, such as the list of most Democratic members of Congress’ email many passwords for which were easily obtainable online, or phone conversations about routine housekeeping or illness. And that’s just attachments; most of the PRISM providers are actually cloud storage providers, in addition to being electronic communication providers, and from the very first requests to Yahoo there was mission creep of all the types of things the government might demand.

And while NSA and FBI aren’t supposed to keep stuff that doesn’t count as foreign intelligence or criminal information, it’s clear (from the WaPo report) that NSA, at least, does.

So as we talk about how inappropriate the upstream back door searches were and are because they can search on stuff that’s not foreign intelligence information, we should remember that the very same thing is likely true of back door searches of  the fruits of searches on a person’s cloud storage account.

Plus, while the example of an ISIS recruiter makes for good show, the targets will also include people like Chinese scientists and Russian businessmen, among other things. There are completely innocent reasons — like science!!! — to speak to such targets. And yet if FBI does a back door search on Americans who’ve engaged in such innocent discussions it can and almost certainly has led to innocent people being targeted unfairly.

It bothers me that me — a dirty fucking hippie blogger, though admittedly one who has become (as a Congressional staffer introduced me as earlier this year) as expert on FISA as anyone outside of government — knows these details better than the FBI Director (who, after all, was involved in not providing defendants adequate notice of this stuff during its illegal go-around under Stellar Wind).

But Wray’s biggest error, on a different topic, came later. After first dodging Pramila Jayapal’s questions about whether Trump’s tweets have contributed to the spike of hate crimes this year by suggesting the data was untrustworthy (!!!), Director Wray than answered her question about the Muslim ban this way.

An awful lot of our terror investigations do also involve immigration violations, so there is a close nexus between immigration violations and counterterrorism investigations, and an awful lot of the terrorist investigations we have involve global jihadist rhetoric, which is disproportionately concentrated in certain countries.

One reason terror investigations involve immigration violations is because that’s an easy way to punish someone who hasn’t actually committed any crime (and given that most terrorist attacks are not recent immigrants, sort of beside the point).

But the notion that immigration from Muslim majority countries — like the six included in the current Muslim ban: Iran, Libya, Syria, Yemen, Somalia, and Chad — is dangerous because global jihadist rhetoric arises from those countries is the height of nonsense. That’s because the most effective recruiter of Americans for almost a decade was a man, Anwar al-Awlaki, who wrote much of his propaganda here or in the UK; while his rhetoric subsequently did get published from Yemen, he’s been dead for 6 years, with far less jihadist rhetoric in English from there. And while Syria, Somalia, and Libya do export hateful rhetoric, so did Iraq and does Saudi Arabia and Pakistan, two countries we haven’t banned. Iran certainly exports a great deal of anti-American rhetoric, but it is not recruiting terrorists here and most of its anti-American actions are legitimate state-based opposition derived from power relations, not religion. And Awlaki is by no means the only producer of anti-American rhetoric in majority Christian countries, including but not limited to the US and UK.

Ultimately, of course, Jayapal was talking about Trump’s Muslim ban, the one that bans elite Venezuelans and North Koreans along with weaker Muslim ones. And while he didn’t go as far as to say that Kim Jong-Un was spewing jihadist rhetoric, that’s the logic here.

But by implication, he was talking about Chad, which in spite of its cooperation on terrorism, got added to the list because Trump is incompetent. To suggest Chad is a propaganda threat and the US and UK are not is the height of folly.

But that’s what the FBI Director claimed today to avoid criticizing Trump’s bigotry.

Update: For some reason I was writing Cedric Richmond’s last name wrong all day today. I’ve corrected my use of “Johnson” instead of “Richmond” here. My apologies to him for my still uncorrected tweets.

10 Years of emptywheel: Key Non-Surveillance Posts 2013-2015

Happy Birthday to me! To us! To the emptywheel community!

On December 3, 2007, emptywheel first posted as a distinct website. That makes us, me, we, ten today.

To celebrate, over the next few days, the emptywheel team will be sharing some of our favorite work from the last decade. I’ll be doing 4 posts featuring some of my most important or — in my opinion — resilient non-surveillance posts, plus a separate post bringing together some of my most important surveillance work. I think everyone else is teeing up their favorites, too.

Putting together these posts has been a remarkable experience to see where we’ve been and the breadth of what we’ve covered, on top of mainstays like surveillance. I’m really proud of the work I’ve done, and proud of the community we’ve maintained over the years.

For years, we’ve done this content ad free, relying on donations and me doing freelance work for others to fund the stuff you read here. I would make far more if I worked for some free-standing outlet, but I wouldn’t be able to do the weedy, iterative work that I do here, which would amount to not being able to do my best work.

If you’ve found this work valuable — if you’d like to ensure it remains available for the next ten years — please consider supporting the site.

2013

What a Targeted Killing in the US Would Look Like

Amid now-abandoned discussions about using the FISA court to review targeted killing, I pointed out that a targeted killing in the US would look just like the October 28, 2009 killing of Imam Luqman Abdullah.

Article II or AUMF? “A High Level Official” (AKA John Brennan) Says CIA Can Murder You

When the second memo (as opposed to the first 7-page version) used to authorize the killing of Anwar al-Awlaki, it became clear that OLC never really decided whether the killing was done under Article II or the AUMF. That’s important because if it’s the latter, it suggests the President can order anyone killed.

John Brennan Sworn in as CIA Director Using Constitution Lacking Bill of Rights

I know in the Trump era we’re supposed to forget that John Brennan sponsored a whole lot of drone killing and surveillance. But I spent a good deal of the Obama Administration pointing that out. Including by pointing out that the Constitution he swore to protect and defend didn’t have the First, Fourth, Fifth, and Sixth amendment in it.

2014

The Day After Government Catalogs Data NSA Collected on Tsarnaevs, DOJ Refuses to Give Dzhokhar Notice

I actually think it’s unreasonable to expect the government’s dragnets to prevent all attacks. But over and over (including with 9/11), NSA gets a pass when we do reviews of why an attack was missed. This post lays out how that happened in the Boston Marathon case. A follow-up continued that analysis.

A Guide to John Rizzo’s Lies, For Lazy Journalists

Former CIA General Counsel John Rizzo lies, a lot. But that doesn’t seem to lead journalists to treat his claims skeptically, nor did it prevent them from taking his memoir as a statement of fact. In this post I summarized all the lies he told in the first 10 pages of it.

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

Over the year and a half when one after another member of Congress asked for the OLC memos that authorized the drone execution of Anwar al-Awlaki, I tracked all those requests. This was the last post, summarizing all of them.

The West’s Ideological Vacuum

With the rise of Trump and the success of Russia intervening in US and European politics, I’ve been talking about how the failures of US neoliberal ideology created a vacuum to allow those things to happen. But I’ve been talking about the failures of our ideology for longer than that, here in a post on ISIS.

KSM Had the CIA Believing in Black Muslim Convert Jihadist Arsonists in Montana for 3 Months

There weren’t a huge number of huge surprises in the SSCI Torture Report for me (indeed, its scope left out some details about the involvement of the White House I had previously covered). But it did include a lot of details that really illustrate the stupidity of the torture program. None was more pathetic than the revelation that KSM had the CIA convinced that he was recruiting black Muslim converts to use arson in Montana.

2015

The Jeffrey Sterling Trial: Merlin Meets Curveball

A big part of the Jeffrey Sterling trial was CIA theater, with far more rigorous protection for 10 year old sources and methods than given to 4 year old Presidential Daily Briefs in the Scooter Libby trial. Both sides seemed aware that the theater was part of an attempt, in part, to help the CIA gets its reputation back after the Iraq War debacle. Except that the actual evidence presented at trial showed CIA was up to the same old tricks. That didn’t help Sterling at all. But neither did it help CIA as much as government prosecutors claimed.

The Real Story Behind 2014 Indictment of Chinese Hackers: Ben Rhodes Moves the IP Theft Goal Posts

I’ve written a lot about the first indictment of nation-state hackers — People’s Liberation Army hackers who compromised some mostly Pittsburgh located entities, including the US Steel Workers. Contrary to virtually all the reporting on the indictment, the indictment pertained to things we nation-state hack for too: predominantly, spying on negotiations. The sole exception involves the theft of some nuclear technology from Westinghouse that might have otherwise been dealt to China as part of a technology transfer arrangement.

Obama’s Terrorism Cancer Speech, Carter’s Malaise Speech

In response to a horrible Obama speech capitulating to Republican demands he treat the San Bernardino attack specially, as Islamic terrorism, I compared the speech to Jimmy Carter’s malaise speech. Along the way, I noted that Carter signed the finding to train the mujahadeen at almost the exactly moment he gave the malaise speech. The trajectory of America has never been the same since.

Other Key Posts Threads

10 Years of emptywheel: Key Non-Surveillance Posts 2008-2010

10 Years of emptywheel: Key Non-Surveillance Posts 2011-2012

Anwar al-Awlaki: Two Days from Finalized 302 to OLC Authorization for Execution

After a multiple year FOIA fight, Scott Shane has liberated the interrogation 302s from Umar Farouk Abdulmutallab. Kudos to Shane and NYT.

As Shane recalls in his story on the reports, I have noted problems about the government’s public claims about Abdulmutallab’s interrogation (even aside from conflicts with his other confessions and the terms under which the interrogation took place). The reports in some ways confirm those concerns — as I’ll write in some follow-up posts. But, more important, they also answer the most fundamental ones.

Some of the reports absolutely support the government’s claim that from Abdulmutallab’s first interrogations in January 2010, he attributed the instructions to wait until he was over the US to detonate his underwear bomb to Anwar al-Awlaki, which was always a key basis for the government’s argument they could execute the cleric.

Near the end of [Abdulmutallab’s — he is referred to as UM throughout these reports] stay at the camp, Aulaqi gave UM final specific instructions: that the operation should be conducted on a U.S. airliner;

[snip]

Aulaqi told UM: “Wait until you are in the US, then bring the plane down.” [PDF 24]

As a number of people have observed, the reports also show that (aside from the isolation later alleged by Abdulmutallab’s lawyers and whatever leverage the FBI got his family to exert), the FBI and the High Value Interrogation Group got a great deal of cooperation from Abdulmutallab without physical coercion, with Abdulmutallab providing intelligence on AQAP into the summer.

In this post, though, I want to note how the reports coincide with two other events from that period of 2010.

As many of you know, there’s a big, still somewhat unsolved problem with FBI interrogations. At the time, FBI didn’t record interrogations (and they still create big loopholes around a recently imposed rule that custodial interviews must be recorded). Rather, the FBI agent would take notes and subsequently write up those notes into a “302,” which is what the FBI calls their reports on interviews.

In Abdulmutallab’s case, there was an interesting lag between the time his interrogators conducted the interrogation and when they wrote it up. For example, his January 29, 2010 interrogation (and all the ones from the subsequent intense period of interrogation), were not dictated until February 5, 2010.

And those dictations did not start to get transcribed into finished 302s until starting on February 17, 19 days after the interrogation.

Let me be clear: there is nothing suspect about the delay. The timing cues in the interrogation makes it clear these initial interrogations were full-day interrogations. Add in the preparation time interrogators would have to do overnight, and it makes sense that they wouldn’t dictate out their notes until the end of the week (though that is yet another reason FBI Agents should always make recordings of interrogations). Moreover, the one week delay is not so long that an agent would forget substantial parts of the interrogation. Plus, a federal defender was present and could have challenged any problems with this report.

So we should assume the report is a fair indication of the conduct of the interrogation.

I’m more interested in the timing of other events in early 2010.

Consider the public comments Director of National Intelligence Dennis Blair made on February 3, at a House Intelligence hearing. Responding to a Dana Priest article from the prior week, Blair assured Congress they get specific permission before they drone kill an American citizen (there are a bunch of still unreleased memos that suggest they were actually still working on this policy).

“We take direct actions against terrorists in the intelligence community,” he said. “If we think that direct action will involve killing an American, we get specific permission to do that.”

He also said there are criteria that must be met to authorize the killing of a U.S. citizen that include “whether that American is involved in a group that is trying to attack us, whether that American is a threat to other Americans. Those are the factors involved.”

Obliquely asked about Awlaki, Blair responded that they would only kill an American “for taking action that threatens Americans or has resulted in it” — a standard that falls short of what OLC would eventually adopt, but one it appears they believed they had already surpassed with Awlaki.

“So there is a framework and a policy for what’s hypothetically a radical born cleric … who’s living outside of the United States, there’s a clear path as to when this person may be engaging in free speech overseas and when he may have moved into recruitment or when he may have moved into actual coordinating and carrying out or coordinating attacks against the United States?”

Mr. Blair responded that he would rather not discuss the details of this criteria in open session, but he assured: “We don’t target people for free speech. We target them for taking action that threatens Americans or has resulted in it.”

That comment was made after Abdulmutallab had implicated Awlaki in giving him final orders, but before it had been dictated, much less transcribed.

Then there’s the first of two OLC memos written to authorize Awlaki’s execution. That was finalized on February 19, 2010, just two days after the first 302 implicating Awlaki in final instructions for the attack was finished.

That is, only two days elapsed from the time that the one document we know of memorializing Abdulmutallab’s confession for David Barron to authorize Awlaki’s execution.

That’s also not that surprising. After all, the government deemed (and had, before this time) Awlaki to be an urgent threat, and they shouldn’t be faulted for wanting to prepare to respond to any opportunity to neutralize it, as quickly as possible. Moreover, unlike the subsequent OLC memo, this one doesn’t appear to analyze the intelligence on Awlaki closely — it just deems him a “senior leader of Al-Qa’ida in the Arabian Peninsula” and moves on to analysis about whether killing him constitutes assassination.

But the timing of all this at least suggests that there were more communications about these issues than have been identified in ACLU’s FOIAs on the subject. They at least suggest (and this would not be surprising in the least, either) that there were less formal communications about Abdulmutallab’s interrogation provided to Washington DC well before this 302 was finalized.

Again — that’s not surprising. I imagine a secure cable went out to Washington after the interrogation on the 29th — if not during Abdulmutallab’s afternoon prayer break — saying that Abdulmutallab had implicated Awlaki in providing the final instructions making sure that the US would be targeted.

But it is an interesting data point on how deliberative the process behind authorizing Awlaki’s execution was.

Trump Fulfills Another Campaign Promise: Kills 8-Year Old American Girl

Back on December 5, 2015, Donald Trump said that if he were elected President, he would take out the families of terrorists.

The other thing with the terrorists is you have to take out their families, when you get these terrorists, you have to take out their families. They care about their lives, don’t kid yourself. When they say they don’t care about their lives, you have to take out their families,

He repeated the promise to kill terrorists’ families later on the campaign trail.

On Sunday, Trump made good on that campaign promise by killing Nora al-Awlaki, the 8 year old American citizen daughter of Anwar al-Awlaki in a JSOC raid. A SEAL team member, Ryan Owens, was also killed in the raid.

Obama, of course, killed Nora’s then 16-year old brother, Abdulrahman, just weeks after having killed the children’s father in a drone strike.

There are competing stories about the purpose and the outcome of the raid, as NBC lays out here. Thus far, however, there has been little acknowledgment that Donald Trump ran on doing just this, killing the 8 year old children of terrorists, which should raise real questions about how so many (possibly in the 40s?) civilians got killed in the raid. Was that the point?

 

 

Maybe FBI Has Lost Track of Who the Informants Are?

Here are all the informants and undercover employees listed in the criminal complaint against Erick Hendricks, who was arrested for conspiring to materially support ISIL in relation to the Garland, TX attack:

  • CHS-1: a paid informant for the last year and a half with a criminal record of fraud and forgery who has not (yet?) received sentencing benefits for his cooperation; he met with Hendricks in Baltimore.
  • CHS2: a paid informant for the last 4 years with no known criminal history; he posed as someone wanting to join ISIL.
  • CHS-3: a paid informant for the last 4 and a half years with no known criminal history; Hendricks instructed CHS-3 to assess UCE-1 for recruitment.
  • CHS-4: a paid informant for the last 4 years with no known criminal history; Hendricks provided him with jihadist propaganda on social media. He also met with Hendricks in Baltimore, at a later date.
  • UCE-1: an undercover officer had conversations directly with Hendricks that mirrored those Hendricks had with a cooperating witness. UCE-1 also incited and then was present for the Garland attack.

Not mentioned at all in this narrative is the role played by Joshua Goldberg, a Jewish guy who adopted many avatars online to incite all kinds of violence, including, under the name of Australi Witness, Garland. In December Goldberg was deemed incompetent to stand trial, though in June it was decided with more treatment he might become competent enough to stand trial, so they’re going to check again in four months.

So, the cell that committed the Garland attack consisted of the two now-dead perpetrators, four informants, an undercover FBI officer, a mentally ill troll, and Hendricks.

Only now, Hendricks claims he was an informant too!

Hendricks claims to have been a paid informant of the FBI since 2009 who helped the agency identify potential terrorists. Code name: “Ahkie,” a variation of the Muslim term for “brother.”

He also claims to have been an outspoken and longtime opponent of radical Islam.

“I have publicly, privately and consistently denounced Al-Qaeda, ISIS and all extremist groups,” Hendricks said in a statement that Lisa Woods says her son dictated during a Wednesday phone call from the jail.

“I am baffled as to why the FBI (is) accusing me of terrorist ties.”

[snip]

In his statement, Hendricks says the FBI first made contact with him in 2009, when as Mustafa Abu Maryam, Hendricks was the youth coordinator of the Islamic Circle of North America Center in Alexandria, Va.

[snip]

In his jail statement, Hendricks says he was recruited in 2009 by an FBI agent named David to help identify potential terrorists. In 2010, after Hendricks had moved to Columbia, he says he worked with another FBI agent named Steve. Altogether, Hendricks claims to have developed “at least a half-dozen” cases against extremists.

Has the FBI simply lost track of who are real and who are the people it is paying to play a role? Or is it possible someone from another agency, claiming to be FBI, recruited Hendricks (don’t laugh! That’s one potential explanation for Anwar al-Awlaki’s curious ties to US law enforcement, a story that wends its way through a related mosque in VA)?

Sure, maybe Hendricks is making all this up (at the very least, it may necessitate the BoP to protect him in prison since he has now publicly claimed to be a narc). But FBI’s network of informants sure is getting confusing.

 

DOJ Confirms One or More Agencies Acted Consistent with John Yoo’s Crummy Opinion

There’s a whiff of panic in DOJ’s response to ACLU’s latest brief in the common commercial services OLC memo, which was submitted last Thursday. They really don’t want to release this memo.

As you recall, this is a memo Ron Wyden has been hinting about forever, stating that it interprets the law other than most people understand it to be. After I wrote about it a bunch of times and pointed out it was apparently closely related to cybersecurity, ACLU finally showed some interest and FOIAed, then sued, for it. In March, DOJ made some silly (but typical) claims about it, including that ACLU had already tried but failed to get the memo as part of their suit for Stellar Wind documents (which got combined with EPIC’s suit for electronic surveillance documents). In response, Ron Wyden wrote a letter to Attorney General Loretta Lynch, noting a lie DOJ made in DOJ’s filings in the case, followed by an amicus brief asking the judge in the case to read the secret appendix to the letter he wrote to Lynch. In it, Wyden complained that DOJ wouldn’t let him read his secret declaration submitted in the case (making it clear they’re being kept secret for strategic reasons more than sources and methods), but asking that the court read his own appendix without saying what was in it.

Which brings us to last week’s response.

DOJ is relying on an opinion the 2nd circuit released last year in ACLU’s Awlaki drone memo case that found that if a significant delay passed between the time an opinion was issued and executive branch officials spoke publicly about it — as passed between the time someone wrote a memo for President Bush’s “close legal advisor” in 2002 about drone killings (potentially of American citizens) and the time Executive branch officials stopped hiding the fact they were planning on drone-killing an American citizen in 2010, then the government can still hide the memo.(I guess we’re not allowed to learn that Kamal Derwish was intentionally, not incidentally, drone-killed in 2002?)

This is, in my understanding, narrower protection for documents withheld under the b5 deliberative privilege exemption than exists in the DC Circuit, especially given that the 2nd circuit forced the government to turn over the Awlaki memos because they had been acknowledged.

In other words, they’re trying to use that 2nd circuit opinion to avoid releasing this memo.

To do that they’re making two key arguments that, in their effort to keep the memo secret, end up revealing a fair amount they’re trying to keep secret. First, they’re arguing (as they did earlier) that the ACLU has already had a shot at getting this memo (in an earlier lawsuit for memos relating to Stellar Wind) and lost.

There’s just one problem with that. As I noted earlier, the ACLU’s suit got joined with EPIC’s, but they asked for different things. ACLU asked for Stellar Wind documents, whereas EPIC asked more broadly for electronic surveillance ones. So when the ACLU argued for it, they were assuming it was Stellar Wind, not something that now appears to (also) relate to cybersecurity.

Indeed, the government suggests the ACLU shouldn’t assume this is a “Terrorist Surveillance Program” document.

7 Plaintiffs conclude that the OLC memorandum at issue here must relate to the Terrorist Surveillance Program and the reauthorization of that program because the attorney who authored the memorandum also authored memoranda on the Terrorist Surveillance Program. Pls.’ Opp. at 10. The fact that two OLC memoranda share an author of course establishes nothing about the documents’ contents, nature, purpose, or effect.

Suggesting (though not stating) the memo is not about TSP is not the same as saying it is not about Stellar Wind or the larger dragnets Bush had going on. But it should mean ACLU gets another shot at it, since they were looking only for SW documents the last time.

Which is interesting given the way DOJ argues, much more extensively, that this memo does not amount to working law. It starts by suggesting Wyden’s filing arguing a “key assertion” in the government’s briefs is wrong.

3 Senator Wyden asks the Court to review a classified attachment to a letter he sent Attorney General Loretta Lynch in support of his claim that a “key assertion” in the Government’s motion papers is “inaccurate.” Amicus Br. at 4. The Government will make the classified attachment available for the Court’s review ex parte and in camera. For the reasons explained in this memorandum, however, the Senator’s claim of inaccuracy is based not on any inaccurate or incomplete facts, but rather on a fundamental misunderstanding of the “working law” doctrine.

In doing so, it reveals (what we already expected but which Wyden, but apparently not DOJ, was discreet enough not to say publicly) that the government did whatever this John Yoo memo said government could do.

But, it argues (relying on both the DC and 2nd circuit opinions on this) that just because the government did the same thing a memo said would be legal (such as, say, drone-killing a US person with no due process), it doesn’t mean they relied on the memo’s advice when they took that action.

The mere fact that an agency “relies” on an OLC legal advice memorandum, by acting in a manner that is consistent with the advice, Pls.’ Opp. at 11, does not make it “working law.” OLC memoranda fundamentally lack the essential ingredient of “working law”: they do not establish agency policy. See New York Times, 806 F.3d at 687; Brennan Center, 697 F.3d at 203; EFF, 739 F.3d at 10. It is the agency, and not OLC (or any other legal adviser), that has the authority to establish agency policy. If OLC advises that a contemplated policy action is lawful, and the agency considers the opinion and elects to take the action, that does not mean that the advice becomes the policy of that agency. It remains legal advice. 5

5 Nor could the fact that any agency elects to engage in conduct consistent with what an OLC opinion has advised is lawful possibly constitute adoption of that legal advice, because taking such action does not show the requisite express adoption of both the reasoning and conclusion of OLC’s legal advice. See Brennan Center, 697 F.3d at 206; Wood, 432 F.3d at 84; La Raza, 411 F.3d at 358.

Effectively, DOJ is saying that John Yoo wrote another stupid memo just weeks before he left, the government took the action described in the stupid memo, but from that the courts should not assume that the government took Yoo’s advice, this time.

One reason they’re suggesting this isn’t TSP (which is not the same as saying it’s not Stellar Wind) is because it would mean the government did not (in 2005, when Bush admitted to a subset of things called TSP) confirm this action in the same way Obama officials danced around hailing that they had killed Anwar al-Awlaki, which led to us getting copies of the memos used to justify killing him.

In short, the government followed Yoo’s advice, just without admitting they were following his shitty logic again.

DOJ Places David Barron’s Anwar Awlaki Memos on the “Not Selected for Publication”

Sometime between March 27 and April 15 of last year, the Office of Legal Counsel posted the two memos David Barron wrote authorizing the execution of Anwar al-Awlaki (February 19, 2010; July 16, 2010) on its list of memos “Not selected for publication” in its reading room. The website explains that these are memos that have been posted through discretionary release, but “may not reflect the Office’s current views.”

Consistent with the President’s FOIA memorandum dated January 21, 2009, and the Attorney General’s FOIA guidelines dated March 19, 2009, OLC sometimes releases requested records as a matter of discretion, even if they fall within the scope of a FOIA exemption or have not been the subject of a FOIA request.  To make such documents generally available when they are the subject of repeated requests or may be of public or historical interest, the Office may post them in this electronic reading room.  Documents posted in this electronic reading room are being disclosed through discretionary release, but they have not been selected for official publication and thus they are not included among the Office’s formal published opinions.  Although these records may be of public or historical interest, the views expressed in some of these records may not reflect the Office’s current views.

Of course, a number of the memos (most but not all of which are tied to the war on terror) weren’t released at DOJ’s discretion. Rather, some of these memos (including the two Awlaki ones) were released after DOJ tried to suppress them, only to have a Federal judge force their release.

I’ve got a call in to see if OLC has some easy explanation. But I’m wondering if it means DOJ may have thought better of now Circuit Court judge David Barron’s advice that you can kill an American citizen with no real due process.

Particularly given the timing, I’m wondering whether any change in DOJ’s views about these memos would affect American citizens overseas, such as Liban Haji Mohamed, a Somali American who was put on the Most Wanted List last year, then detained (never to publicly have shown up in an American court) on March 2, 2015. Unlike Anwar al-Awlaki, Mohamed (who is the brother of Gulet Mohamed, who has had a whole different set of problems with the government) has actually been indicted.

ACLU’s Jameel Jaffer points to a potentially more cynical (and therefore likely) explanation though. As he noted last year, at about the same time DOJ was deeming the Barron memos discretionary releases, it submitted a filing in their lawsuit against ACLU, insisting that having been ordered by a court to release the memo doesn’t count as official disclosure. In a footnote of the April 2 filing, DOJ claimed,

We further note that the Court’s release of the OLC-DOD Memorandum and its order compelling disclosure by the government of additional information would not themselves constitute an independent official disclosure or waiver by the government that would strip protection from otherwise exempt information and material.

That is, during precisely the time period when it was deeming this memo discretionary on its website, it was making that argument to the courts.

So I assume they believe they still have the right to execute American citizens at their discretion. And keep their rationale for doing so secret.